Provisional text
ORDER OF THE GENERAL COURT (Fourth Chamber)
17 May 2017 (*)
(Procedure — Taxation of costs)
In Case T‑432/12 DEP,
Volžskij trubnyi zavod OAO (VTZ OAO), established in Volzhsky (Russia),
Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), established in Taganrog (Russia),
Sinarskij trubnyj zavod OAO (SinTZ OAO), established in Kamensk-Uralsky (Russia),
Severskij trubnyj zavod OAO (STZ OAO), established in Polevskoy (Russia),
represented by J.-F. Bellis, F. Di Gianni, G. Coppo, and C. Van Hemelrijck, lawyers,
applicants,
v
Council of the European Union, represented by B. Driessen, acting as Agent,
defendant,
supported by
European Commission,
intervener,
APPLICATION for taxation of costs by the Council following the judgment of 30 April 2015 in VTZ and Others v Council (T‑432/12, not published, EU:T:2015:248),
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 Registry of the General Court on 26 September 2012, the applicants, Volžskij trubnyi zavod OAO (VTZ OAO), Taganrogskij metallurgičeskij zavod OAO (Tagmet OAO), Sinarskij trubnyj zavod OAO (SinTZ OAO), and Severskij trubnyj zavod OAO (STZ OAO), brought an action for annulment of Council Implementing Regulation (EU) No 585/2012 of 26 June 2012 imposing a definitive anti-dumping duty on imports of certain seamless pipes and tubes, of iron or steel, originating in Russia and Ukraine, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain seamless pipes and tubes, of iron or steel, originating in Croatia (OJ 2012 L 174, p. 5), in so far as it applies to them.
2 By judgment of 30 April 2015 in VTZ and Others v Council (T‑432/12, not published, EU:T:2015:248), 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 20 May 2015, the Council claimed the sum of EUR 44 505.50 from the applicants in respect of recoverable costs incurred in the proceedings before the General Court.
4 By letter of 4 September 2015, the applicants expressed their disagreement with the amount claimed by the Council. In that letter, the applicants offered to repay the Council the sum of EUR 15 000.
5 By letter of 27 October 2015, the Council revised its claim for reimbursement of costs by sending the applicants a credit note in the amount of EUR 43.65, and a supplementary fee note in an amount of EUR 20 247.15 billed by two different lawyers from those mentioned in the first application. The total amount claimed by the Council in the claim for costs was therefore EUR 64 709.
6 The applicants having failed to respond to that letter, the Council, by document lodged with the Court Registry on 3 June 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 60 372.50 the amount of costs recoverable;
– apply default interest to that amount, from the date of service of the present order until the date of actual payment, at the rate of 3.5%.
7 In their observations, lodged at the Court’s Registry on 11 August 2016, the applicants claim that the General Court should:
– dismiss the application for taxation of costs;
– set at EUR 16 000 the amount of costs recoverable;
– order the Council to bear the costs of the present proceedings.
Law
8 As provided in Article 170(3) of the Rules of Procedure of the General Court, 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 lies.
9 Under Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are to be regarded as recoverable costs. 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).
10 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 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).
11 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 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18 and the case-law cited).
12 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 the amount of recoverable costs on the basis of an equitable assessment, it nonetheless 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).
13 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).
14 The amount of the costs recoverable in the present case must be determined in accordance with those criteria.
The amount of lawyers’ fees which are recoverable
15 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 related to an application for annulment in an anti-dumping matter which may be broken down, in essence, into four pleas in law. The first plea alleged infringement of Article 3(4) of Regulation No 1225/2009 in that the principle of equal treatment was infringed by the addition of imports from Russia and Ukraine. The second plea in law was based on a breach of the principle of equal treatment, a manifest error of assessment of the facts and an infringement of Article 11(2) of that regulation, because of the finding that the expiry of the measures would, in all likelihood, lead to a recurrence of injury. The third plea in law alleged an infringement of Articles 9(4) and 21 of that regulation and of the principle of equal treatment on account of a manifest error of assessment when analysing the EU interest. The fourth plea in law was based on an infringement of the principle of sound administration, of the obligation to state reasons and of the applicants’ rights of defence
16 It must be stated that despite the complex factual context and the relatively technical legal context of the dispute, 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.
17 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).
18 Thirdly, having regard to the workload of the Council which resulted from the proceedings, that institution submitted two fee notes from its external lawyers, in a total amount of EUR 64 709, revised, as part of the present application for taxation of costs, to a figure of EUR 60 372.50, 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 178.1 hours, revised in the context of the present application to a figure of 168.6 hours.
19 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 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 30 and the case-law cited).
20 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 under the written phase of the proceedings included, in essence, the analysis of a 45-page application, together with 459 pages of annexes, correspondence between the parties’ representatives and with the Commission and Council, the drafting of the 33-page defence, the review of the 24-page reply and the drafting of the 23-page rejoinder. A total of 137.1 hours were billed for the written phase of the proceedings. In respect of the oral phase of the proceedings, the 31.5 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 57.2 hours and that billed for the services of their associates to 111.4 hours.
21 However, that number of hours worked appears to be excessive given the characteristics of the case in the main proceedings, as set out in paragraphs 15 to 17 above and the scope of work to be carried out.
22 First of all, as noted by the applicants, 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 external representatives during the proceedings. However, the Commission itself conceded, in the application for taxation of costs, that the time billed for the days of 24 September, 6 October and 7 October 2014, spent by its new lawyers on making themselves familiar with the file, namely 9.5 hours, should be subtracted from the total number of billable hours.
23 On the other hand, after reviewing the fee notes and the description of the tasks carried out, it appears that part of the hours billed on 9 and 10 October 2014 was devoted to the Council’s new lawyers becoming familiar with the file, as maintained in essence by the applicants. The other tasks carried out during those three days related to coordinating with the Commission and preparing oral arguments. 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 4.5 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, as noted by the applicants, 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, the time invoiced by the partner on 3, 9, 10 December 2012, 7 March 2013, and 12 and 16 April 2013, namely 13.5 hours for the review of the work carried out by his associate, appear 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 November 2012, 13 December 2012, 1, 2, 10, 11 March 2013, and 9, 10 and 14 October 2014, which may be assessed at 17.5 hours, must be deducted from the objectively justified number of hours worked.
26 In the light of those considerations, the Court takes the view that a fair assessment of the objectively necessary number of legal hours worked would be 133.1 hours, comprising 112 hours for the written phase of the proceedings and 21.1 for the oral phase of the proceedings. The number of hours worked may be divided into 32.6 hours worked by partners and 100.5 hours worked by associates.
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 15 to 17 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 The applicants also submit that, at the time of the main proceedings, the first partner’s associate had not yet qualified as a lawyer, thus attesting to his lack of experience and justifying an hourly rate not exceeding EUR 100. The Council accepts that that associate was not yet admitted to the Bar as a lawyer during the proceedings before the General Court. The case-law has already stated that an hourly rate of GBP 160 (approximately EUR 195 at the time) for a trainee solicitor was excessive (see order of 8 April 2014, Laboratoires CTRS v Commission, T‑12/12 DEP, not published, EU:T:2014:231, paragraphs 50 and 51). It must therefore be held that having regard to the characteristics of the case in the main proceedings, as set out in paragraphs 15 to 17 above, the hourly rate claimed for that associate should not exceed EUR 150.
29 Moreover, as regards the second partner’s associate, no billable hours may be attributed to him because of the deduction of the hours devoted to the familiarisation with the file for the second time from the legal time objectively required in order to defend the interests of the Council (see paragraphs 22 and 23 above).
30 As regards the costs relating to the present proceedings, it is appropriate to order that each party bear its own costs, since the parties were only partially justified in their pleas and claims (see, to that effect, orders of 14 July 2015, Ntouvas v ECDC, T‑223/12 DEP, not published, EU:T:2015:570, paragraph 37, and of 11 January 2017, Wahlström v Frontex, T‑653/13 P‑DEP, not published, EU:T:2017:12, paragraphs 38 and 39).
31 In the light of all the foregoing considerations, the General Court sets the amount of recoverable costs at EUR 28 115, which takes into account all the circumstances of the case up to the date of the adoption of the present order.
Late payment interest
32 The Commission requests the Court to order that interest be added to the amount of recoverable costs at the rate of 3.5%, to be calculated from the date of the present order until the date on which it is repaid.
33 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 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).
34 The Council’s claim 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).
35 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, as requested by the Council, 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).
36 In the light of all the foregoing considerations, the total costs recoverable by the Council can be assessed on an equitable basis at EUR 28 115, which takes account of all the facts of the case up to the time of the adoption of the present order, to which shall be added default interest from the date of service of the present order until the date of payment of the total amount due.
On those grounds,
THE GENERAL COURT (Fourth Chamber),
hereby orders:
1. The total amount of costs to be reimbursed by Volžskij trubnyi zavod OAO, Taganrogskij metallurgičeskij zavod OAO, Sinarskij trubnyj zavod OAO, and Severskij trubnyj zavod OAO to the Council of the European Union is set at EUR 28 115.
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.