Order OF THE GENERAL COURT (Sixth Chamber)
12 May 2021 (*)
(Procedure – Taxation of costs – Recoverable costs)
In Case T‑199/04 DEP,
Gul Ahmed Textile Mills Ltd, established in Karachi (Pakistan), represented by L. Ruessmann and J. Beck, lawyers,
applicant,
v
Council of the European Union, represented initially by J.-P. Hix, acting as Agent, and by R. Bierwagen and C. Hipp, lawyers, and subsequently by J.-P. Hix, acting as Agent,
defendant,
supported by
European Commission
intervener,
APPLICATION for taxation of costs submitted by the Council of the European Union following the judgments of 27 September 2011, Gul Ahmed Textile Mills v Council, T‑199/04, not published, EU:T:2011:535; of 14 November 2013, Council v Gul Ahmed Textile Mills, C‑638/11 P, EU:C:2013:732; and of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, S. Frimodt Nielsen and J. Schwarcz (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and form of order sought
1 By application lodged at the Court Registry on 28 May 2004, the applicant brought an action for annulment of Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004 L 66, p. 1) in so far as it concerned the applicant. By judgment of 27 September 2011, Gul Ahmed Textile Mills v Council (T‑199/04, EU:T:2011:535), the General Court annulled the regulation at issue in so far as it concerned the applicant and ordered the Council to bear its own costs and to pay those incurred by the applicant.
2 The Council, in support of which the Commission intervened, brought an appeal against that judgment. By judgment of 14 November 2013, Council v Gul Ahmed Textile Mills (C‑638/11 P, EU:C:2013:732), the Court of Justice set aside the judgment of the General Court, referred the case back to the General Court and reserved the costs.
3 By judgment of 15 December 2016, Gul Ahmed Textile Mills v Council (T‑199/04 RENV, EU:T:2016:740), the General Court dismissed the action for annulment of Council Regulation (EC) No 397/2004 of 2 March 2004 in so far as it concerns the applicant and ordered the applicant to pay the costs. In paragraph 184 of that judgment, the General Court stated that it was for it to rule on all the costs relating to the various proceedings, in accordance with Article 219 of the Rules of Procedure.
4 On 24 February 2017, the applicant brought an appeal against that judgment of the General Court. The Court of Justice dismissed the appeal and ordered the applicant to pay the costs of those proceedings, by judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842. The costs incurred by the Council in that case were the subject of separate taxation proceedings before the Court of Justice (C‑100/17 P-DEP).
5 Before and after that dismissal of the appeal by the Court of Justice, the parties exchanged several letters concerning the costs incurred in the proceedings relating to Cases T‑199/04, C‑638/11 P and T‑199/04 RENV.
6 By letter of 9 March 2017, the Council requested the applicant to pay to it, before 15 March 2017, the sum of EUR 146 819.14 in respect of those costs. It stated that, under Article 83(2) and (3) 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), that amount would be increased, where appropriate, by default interest at the rate of 3.5%. Documents substantiating the amount claimed were enclosed with that letter. By letter of 4 April 2017, the applicant rejected the request for repayment on the ground that the action was still pending before the Court of Justice in Case C‑100/17 P.
7 By letter of 24 April 2017, the Council maintained that, since the appeal against the judgment of the General Court did not have suspensory effect, the applicant remained under an obligation to repay all the costs claimed. By letter of 19 May 2017, the applicant reiterated its request for the proceedings for taxation of costs to be stayed pending delivery of the judgment of the Court of Justice in Case C‑100/17 P. It also disputed whether some of the costs claimed by the Council were recoverable and stated that certain other costs and expenses did not constitute expenses necessarily incurred by the Council.
8 By letter of 14 March 2018, the Council replied to the applicant, enclosing a number of additional documents. Furthermore, it deducted from its initial applications the amounts of EUR 961.88 in Case T‑199/04, EUR 111.20 in Case C‑638/11 P, and EUR 1 015 in Case T‑199/04 RENV, in response to the points raised by the applicant. The total amount claimed was thus fixed at EUR 144 731.06. The Council also explained the position on the other amounts claimed and proposed an amicable settlement of the claims for a total amount of EUR 135 000.
9 By letter of 30 October 2018, the Council reminded the applicant of all of the earlier correspondence concerning its costs incurred in Cases T‑199/04, C‑638/11 P and T‑199/04 RENV. The Council enclosed with that letter a credit note concerning certain amounts in respect of which it accepted the claims of the applicant and stated that the amount due in respect of those three proceedings was EUR 144 731.06.
10 By letter of 2 January 2019, the applicant rejected the amounts claimed by the Council in its previous letters, setting out the reasons for which it considered that certain expenses did not constitute costs necessarily incurred by the Council. It submitted an offer for the settlement of the claims of EUR 80 000.
11 By letter of 9 January 2020, the Council replied to the arguments set out in the applicant’s letter of 2 January 2019 and put forward a new offer for the settlement of the costs, fixing the total amount at EUR 139 000.
12 By letter of 21 February 2020, the applicant rejected that offer and maintained its previous settlement offer.
13 No agreement was reached on the amount of recoverable costs.
14 By document lodged at the Court Registry on 3 July 2020, under Article 170(1) of the Rules of Procedure, the Council applied for the Court to fix the amount of recoverable costs at EUR 144 731.06 plus default interest at the rate of 3.5% from 15 March 2017 until actual payment.
15 On 25 August 2020, the applicant lodged its observations on the application for taxation of costs. It claimed that the Court should:
– dismiss the application for taxation of costs as inadmissible;
– dismiss the application for taxation of costs on the merits;
– in the alternative, limit the amount of recoverable costs to EUR 60 000 and dismiss the claim for default interest;
– order the Council to pay the costs of the present proceedings.
Law
Admissibility
16 The applicant submits, in essence, that the application for taxation of costs is inadmissible, since the Council failed to comply with the reasonable time limit for submitting it. It also claims that the approach of the Council during the negotiations on costs was characterised by significant delays in communication and failures to inform it on certain points.
17 It should be noted that Article 170 of the Rules of Procedure of the General Court does not make the submission of an application for taxation of costs subject to any time limit.
18 Yet, it is apparent from the settled case-law of the Court of Justice that an application for recovery of costs must be submitted to the party ordered to pay the costs within a reasonable period (order of 20 January 2021, Council v Gul Ahmed Textile Mills, C‑100/17 P-DEP, not published, EU:C:2021:41, paragraph 21 and the case-law cited).
19 In this case, it must be noted, first, that, as was recalled in paragraphs 5 to 12 above, the Council repeatedly contacted the applicant, before and after the adoption of the judgment of 18 October 2018, Gul Ahmed Textile Mills v Council, C‑100/17 P, EU:C:2018:842, dismissing the appeal against the judgment of the General Court of 15 December 2016, Gul Ahmed Textile Mills v Council (T‑199/04 RENV, EU:T:2016:740), for the purposes of claiming the costs from it.
20 Second, it is apparent from the analysis of the correspondence between the applicant and the Council that the latter replied to its questions concerning the concretisation of certain costs and that it communicated to it, in good time, additional information concerning the specification of the work carried out by its external lawyers.
21 Third, the Council corrected some of the accounting lines by removing the amounts of costs initially claimed.
22 It is apparent from all that information that the Council took the necessary steps and brought its application for taxation of costs within a period which did not exceed the reasonable period beyond which a finding would have been justified, first, that that institution had lost its right to recover the costs necessarily incurred for the purpose of the proceedings and, second, that the applicant could rightly assume that that institution had waived its right (see, in particular, paragraphs 12 and 14 above).
23 The objection of inadmissibility must therefore be dismissed.
Substance
24 Under Article 170(1) to (3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, on the application of the party concerned, to give its decision by way of an order from which no appeal shall lie, after giving the party concerned by the application an opportunity to submit its observations.
25 Under 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 regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court, including in the case of a referral following the setting aside of a judgment of the General Court on appeal, and those before the Court of Justice in so far as that court has not ruled on costs in its judgment on appeal and, second, to those which were necessary for that purpose (see, to that effect, order of 11 January 2019, Orange v Commission, T‑444/04 RENV-DEP, not published, EU:T:2019:24, paragraph 50 and the case-law cited).
26 As regards lawyers’ fees, it is important to recall that, in accordance with settled case-law, the EU Courts are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees to be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the 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 or her agents or advisers (see order of 12 January 2016, Boehringer Ingelheim International v OHIM – Lehning entreprise (ANGIPAX), T‑368/13 DEP, not published, EU:T:2016:9, paragraph 12 and the case-law cited).
27 It is also settled case-law that, in the absence of provisions 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 proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (see order of 28 June 2016, MIP Metro v EUIPO – Holsten-Brauerei (H), T‑193/12 DEP, not published, EU:T:2016:404, paragraph 11 and the case-law cited).
28 Lastly, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see order of 25 June 2018, BASF v EUIPO – Evonik Industries (DINCH), T‑721/15 DEP, not published, EU:T:2018:396, paragraph 11 and the case-law cited).
29 In the light of those considerations, it is appropriate to assess the amount of recoverable costs in this case.
30 As stated in paragraph 14 above, the Council seeks repayment of costs of EUR 144 731.06 plus default interest at the rate of 3.5% from 15 March 2017 until actual payment.
31 The repayment of costs of EUR 144 731.06 plus interest sought by the Council consists, first, of a sum of EUR 142 630.62 in respect of external lawyers’ fees. That amount consists of three parts, that is to say EUR 91 008.62 in Case T‑199/04, EUR 18 716 in Case C‑638/11 P and EUR 32 906 in Case T‑199/04 RENV.
32 Second, a sum of EUR 1 459.16 is claimed by the Council in respect of other repayable expenses of external lawyers. That amount consists of three parts, that is to say EUR 659.51 in Case T‑199/04, EUR 204.50 in Case C‑638/11 P and EUR 595.15 in Case T‑199/04 RENV.
33 Third, a sum of EUR 641.28 is claimed by the Council as disbursements other than the fees and expenses of external lawyers. That amount consists of three parts, that is to say EUR 291.18 in Case T‑199/04, EUR 54.40 in Case C‑638/11 P and EUR 295.70 in Case T‑199/04 RENV.
34 In the first place, the applicant disputes the total number of hours of work spent by the partner and his associate lawyers at each stage of the proceedings. In the second place, the applicant submits that the costs relating to the use of more than one external lawyer are not expenses necessarily incurred. In the third place, the applicant claims that the increase in the hourly rates of the external lawyers of the Council, made during the proceedings, was not necessary or recoverable. Furthermore, the General Court has previously established in similar cases that the hourly rate of the partners that may be claimed must not exceed EUR 400. In the fourth place, according to the applicant, the time spent by the external lawyers of the Council on the coordination and communication with the services of the Commission was not necessary and the related costs are not recoverable. In the fifth place, the applicant alleges that some of the expenses and disbursements are not repayable.
The costs claimed in respect of the fees of external lawyers
Preliminary observations
35 The applicant claims, in paragraphs 26 to 31 of its observations on the application for taxation of costs, in essence, that, since the Council is not required to be represented by an external lawyer in actions against anti-dumping measures under Article 263 TFEU, brought by individuals affected by those measures, it was for it to set out the reasons for which its own legal service lacked sufficient resources to handle the cases in question. According to the applicant, in the absence of such explanations, the entire application for taxation of costs concerning the lawyers’ fees and expenses should have been dismissed, since those were not necessary expenses.
36 In that regard, it is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, applicable before the General Court pursuant to the first paragraph of Article 53 of that Statute, that the institutions of the European Union are free to have recourse to the assistance of a lawyer. The remuneration of that lawyer is thus covered by the concept of expenses necessarily incurred for the purpose of the proceedings (see, to that effect, order of 11 December 2014, Longinidis v Cedefop, T‑283/08 P-DEP, EU:T:2014:1083, paragraph 24 and the case-law cited).
The fees of external lawyers
37 In accordance with the case-law referred to in paragraph 27 above, it is necessary to examine whether, in the light of the purpose and nature of the proceedings, their significance from the point of view of EU law, the complexity and difficulties presented by the case, the financial interests which the parties had in the proceedings, and the amount of work carried out, the assessment of the costs claimed is justified. That examination must be carried out in relation to each of the three judgments concerned by the application for taxation of costs.
– Case T‑199/04
38 As regards the conditions relating to the purpose and nature of the proceedings and to the difficulties presented by the case, it should be noted that the subject matter of the proceedings was an application for annulment of Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004 L 66, p. 1) in so far as it concerned the applicant.
39 In support of its application for annulment, the applicant had relied on five pleas in law, some of which were subdivided into several parts. They also relied, in addition to EU law, on the rules of the World Trade Organisation (WTO). Contrary to what is claimed by the applicant, which argues that this was merely a challenge to a Council regulation imposing anti-dumping measures which did not present any particular difficulties which would have justified the total number of hours which the lawyers of the Council spent on the proceedings, the involvement of a second lawyer or the high hourly rates charged by those lawyers, clearly the dispute in the main proceedings required an in-depth legal analysis, taking into account the overlap between EU law and WTO rules, and presented some technical aspects, in particular of a factual nature. Some questions were significant from the point of view of EU law, such as that concerning the establishment of a causal link between the imports subject to dumping and the injury suffered by the EU industry.
40 As regards the financial interests which the parties had in the proceedings, it should be noted that Council Regulation (EC) No 397/2004 of 2 March 2004 imposed a definitive anti-dumping duty of 13.1% on imports of cotton-type bed linen originating in Pakistan. The Council, as a party to the proceedings, had a clear interest in the dismissal of the action of Gul Ahmed. If that action had been upheld and the abovementioned regulation had been partially annulled, injurious effects for EU industry would have ensued. That being said, although the proceedings involved financial interests, those interests cannot be regarded as unusual or significantly different from that underlying any investigation procedure imposing anti-dumping duties.
41 Concerning the amount of work carried out by the external lawyers of the Council, it is for the Court to assess whether the number of hours of work appears to be objectively necessary for the purpose of the proceedings in the cases in the main proceedings, and whether the hourly rate applied corresponds to a normal hourly rate in such proceedings.
42 In that regard, the primary consideration is the total number of hours of work which may appear to be 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 (see order of 16 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint Undertaking Fusion for Energy, T‑553/13 DEP, not published, EU:T:2018:199, paragraph 36 and the case-law cited).
43 The division of work between various lawyers to prepare pleadings may entail some duplication of effort, so that the General Court cannot, in that case, recognise all the hours of work claimed (see order of 15 February 2019, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15 DEP, not published, EU:T:2019:100, paragraph 45 and the case-law cited).
44 Lastly, in accordance with settled case-law, the hourly rate which is sought to have applied must be taken into consideration, since remuneration at a high hourly rate is appropriate only for the services of professionals who are capable of working efficiently and rapidly, the quid pro quo being that, in such a case, an assessment must be made – which must be rigorous – of the total number of hours of work necessary for the purpose of the litigation proceedings (see order of the General Court of 22 March 2010, Mülhens v OHIM – Spa Monopole (MINERAL SPA), T‑93/06 DEP, not published, EU:T:2010:106, paragraph 22 and the case-law cited).
45 In this case, the Council annexed to its letter of 9 March 2017 to the applicant the following four invoices provided by its external lawyers:
– the invoice of 8 October 2004 for EUR 27 051.76;
– the invoice of 15 December 2006 for EUR 11 542.51;
– the invoice of 15 June 2007 for EUR 29 864.63;
– the invoice of 18 November 2010 for EUR 23 511.60.
46 As regards the invoice of 15 December 2006, the Council subsequently found that it contained two references to questions put by the Court in the context of measures of organisation of procedure, which were included by mistake. The Council therefore deducted the sum of EUR 961.88, corresponding to 2.25 hours of work by a partner at an hourly rate of EUR 427.50. Therefore, the amount of its claim, on the basis of that invoice, was reduced to EUR 10 580.63. The applicant was informed of that by letter of 14 March 2018.
47 It should be noted that the external lawyers of the Council, first, drafted a statement in defence of 51 pages, which was accompanied by 10 pages of annexes, and a rejoinder of 27 pages without annexes, and, second, prepared for the oral hearing in which they represented the Council. Furthermore, it should be noted that, in addition to its agents the Council was represented by a partner and two associates, given that only one associate was to work with the partner at the same time, which is also consistent with the data appearing in the invoices submitted.
48 The applicant takes the view that the total number of hours spent by the partner (38.5 hours) and by the associate lawyer (121.5 hours) in drafting the Council’s statement in defence is excessive. The applicant also disputes the lack of breakdown of the fees invoiced on 8 October 2004. Similarly, the applicant takes issue with the total number of hours invoiced for drafting the rejoinder (16.75 hours and 70.95 hours, respectively, for the partner and for the associate lawyer) and preparing for the hearing (60.70 hours, overall, for the partner and the associate lawyer).
49 It should be noted, in that regard, first, that, as has already been found in paragraphs 42 and 43 above, the Court must take account principally of the total number of hours of work which may appear necessary for the purpose of the litigation proceedings, irrespective of the number of lawyers who may have provided the services in question, subject to any duplication of effort.
50 Second, although there is nothing to prevent the Court from taking into account an increase in the hourly rates of a partner during the relevant period for the taxation of costs, the applicant rightly observes that, in similar cases, the Court has previously limited the hourly rate which may be claimed to EUR 400 (see order of 17 May 2017, VTZ and Others v Council, T‑432/12 DEP, not published, EU:T:2017:397, paragraph 27).
51 In the light of the foregoing, in addition to the limitation of the fees of the partner to a maximum hourly rate of EUR 400, it is necessary to assess, first, whether the invoice of 8 October 2004 is sufficiently detailed and, second, whether the total number of hours of work of the external lawyers appearing in the various invoices listed in paragraph 45 above was necessary for the purpose of the litigation proceedings. As regards the first point, the invoice of 8 October 2004 stated that it related to legal services, in particular associated with the preparation of the Council’s statement in defence. Such a specification is sufficient, in so far as it makes it possible for the Court to assess the work carried out in the light of the hours stated for the partner and the associate lawyer.
52 As regards the second point, it should be noted, first of all, as to the amount of work carried out by the associate lawyer in preparing and drafting the Council’s statement in defence, that the 121.50 hours stated in the invoice of 8 October 2004 are excessive in relation to the task, even taking into account the legal and financial significance of the proceedings (see paragraphs 38 to 40 above). Thus, only 80 hours of the work by the associate lawyer are regarded as recoverable, taking into account also the hours spent by the partner in preparing and drafting the Council’s statement in defence. Similarly, concerning the amount of work carried out by another associate lawyer in preparing and drafting the Council’s rejoinder, it must be held, for the same reasons as those above, that the 67.25 hours of work stated in the invoice of 15 June 2007 are excessive. Thus, only 60 hours of the work by the associate lawyer in respect of that task are regarded as recoverable.
53 Next, the following accounting lines in the invoices must be disregarded as not recoverable:
– in the invoice of 15 December 2006, the two accounting lines dated 20 and 21 November 2006, corresponding to the analysis of the comments made by the Directorate-General (DG) ‘Trade’ of the European Commission, and the incorporation of corresponding amendments into the statement in defence; they include, overall, 1.5 hours of work by the partner; those deductions are added to those already made by the Council (see paragraph 46 above);
– in the invoice of 15 June 2007, the undated accounting line corresponding to the communication by emails with the DG ‘Trade’; they include, overall, 3 hours of work by the partner and 3.70 hours by the associate lawyer;
– in the invoice of 18 November 2010, the accounting lines of 26 and 27 October 2010 concerning the meeting between an associate lawyer and the agents of the Commission before the hearing; they include 4.20 hours of work.
54 Lastly, in that latter invoice, it is also necessary to disregard, first, the accounting line of 20 October 2010 corresponding to reading case-law of the Court of Justice and of the General Court and reports of the WTO bodies. In accordance with the case-law, such activity does not fall within recoverable costs (order of 20 November 2012, Al Shanfari v Council and Commission, T‑121/09 DEP, not published, EU:T:2012:607, paragraph 43 and the case-law cited). That includes 3.50 hours of work by the associate lawyer.
55 Second, as regards the two accounting lines of 26 and 27 October 2010, it cannot be accepted that travel to Luxembourg from Brussels (return) for the hearing is invoiced by the partner at the same hourly rate as that applied to legal work, without any explanation appearing in those accounting lines. It should be noted that the invoicing of travel time in the context of those fees can, in no event, be regarded as falling within the concept of necessary expenses (see, to that effect, order of 30 April 2018, European Dynamics Belgium and Others v EMA, T‑158/12 DEP, not published, EU:T:2018:295, paragraph 40). Therefore, five hours of work by the partner must be deducted.
56 In that context, the Court considers it appropriate to fix the lawyers’ fees recoverable in respect of the main proceedings, in Case T‑199/04, at EUR 69 724.25.
– Case C‑638/11
57 As regards the conditions relating to the purpose and nature of the proceedings and to the difficulties presented by the case, it should be noted that, by its appeal, the Council sought to have set aside the judgment of the General Court of 27 September 2011, Gul Ahmed Textile Mills v Council (T‑199/04, EU:T:2011:535). In essence, the Council maintained that the General Court had erred in concluding that two factors at issue, namely the abolition of the previous anti-dumping duties and the implementation of a scheme of generalised preferences, at the beginning of 2002, in favour of the Islamic Republic of Pakistan, constituted ‘other factors’ within the meaning of Article 3(7) of the basic regulation. The Council based its arguments, in particular on international law and, specifically, on findings of WTO panels.
58 In those circumstances, it may be found that the appeal proceedings retained some complexity. The main issue was still significant from the point of view of EU law. As regards the financial interests in the proceedings, reference should be made to paragraph 40 above.
59 As regards the amount of work carried out by the external lawyers of the Council, the Council annexed to its letter of 9 March 2017 to the applicant the following five invoices provided by its external lawyers, relating, in particular, to the preparation of the appeal and the oral hearing:
– the invoice of 29 December 2011 for EUR 9 029.60;
– the invoice of 17 January 2012 for EUR 556;
– the invoice of 19 June 2012 for EUR 1 058.80;
– the invoice of 18 March 2013 for EUR 8 182.80; during the negotiations, the Council deducted the amount of EUR 111.20 corresponding to the first accounting entry, relating to a ‘draft letter to [the] Court to request that [the] oral hearing be re-scheduled’, since it was not possible to identify whether that letter had been sent; the amount claimed by the Council was therefore reduced to EUR 8 071.60.
60 The applicant alleges that those fees and expenses are, in essence, excessive and not necessary. In particular, the number of hours spent by the partner in preparing and participating in the hearing (a total of 16.5 hours) is allegedly disproportionate in relation to the time spent (23 hours) in preparing and lodging the entire action.
61 For the same reasons as those set out in paragraphs 49 and 50 above, in addition to the limitation of the fees of the partner to a maximum hourly rate of EUR 400, it is appropriate, in the light of the written procedure and the oral hearing, to tax the costs claimed by the Council as follows:
– in the invoice of 29 December 2011, the accounting line of 11 November 2011 relating to the exchange of emails between the partner and the Commission must be disregarded, in so far as that does not constitute recoverable costs; it includes 0.2 hours of work;
– in the invoice of 19 June 2012, as regards the accounting line of 14 May 2012 relating to the proofreading of the file by the associate lawyer and the preparation of a letter setting out the reasons requiring an oral hearing, it is appropriate to reduce the time spent (2.6 hours) by half, so as to avoid duplication associated with the taking over of the case by a new associate lawyer, and taking into account the nature of the procedural act carried out;
– in the invoice of 18 March 2013, in addition to the deduction of EUR 111.20 corresponding to the first accounting entry, already made by the Council, it is also appropriate to deduct five hours of work from the accounting line of 21 February 2013, since it includes the travel of the partner between Brussels and Luxembourg (return), for the purpose of the hearing, invoiced at the same hourly rate as that applied to legal work, which does not constitute recoverable costs as lawyers’ fees as stated in paragraph 55 above.
62 The other accounting headings stated in the invoices do not appear to be excessive or disproportionate in relation to the work required. In that context, the Court considers it appropriate, taking into account all the evidence examined, including the financial significance of the proceedings and the financial interests which the parties had in the proceedings, to fix the lawyers’ fees recoverable in respect of the main proceedings in Case C‑638/11 at EUR 13 674.60.
– Case T‑199/04 RENV
63 As regards the purpose and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case and the financial interests, the referral proceedings must be regarded, in essence, as comparable to the initial proceedings before the General Court in Case T‑199/04 (see paragraphs 38 to 40 above). While it is true that the General Court was not required, in the context of the referral proceedings, to re-judge the third part of the fifth plea, responsibility lay with it for deciding on all the other pleas and the other parts of the fifth plea. Moreover, as the Council rightly recalls in the application for taxation of costs, other important issues were raised, such as that concerning the continuing interest of the applicant in bringing proceedings.
64 As regards the amount of work carried out by the external lawyers of the Council, those lawyers prepared, in the context of the referral, first, observations of 28 pages concerning the subsequent stages of the proceedings, submitted under Article 119(1)(b) of the Rules of Procedure of the General Court, second, replies to the measures of organisation of procedure of the Court and, third, the oral hearing.
65 In that regard, the Council annexed to its letter of 9 March 2017 to the applicant the following four invoices provided by its new external lawyers, the hourly rates of which did not exceed EUR 400 per hour:
– the invoice of 1 May 2014 for EUR 16 066;
– the invoice of 30 November 2015 for EUR 12 079;
– the invoice of 31 December 2015 for EUR 2 451;
– the invoice of 30 June 2016 for EUR 3 325; during the negotiations, the Council deducted the sum of EUR 1 015 corresponding to a telephone call with the services of the Commission concerning the ‘circumvention Bangladesh’, since it had been included by error; the amount claimed was thus reduced to EUR 2 310.
66 The applicant submits, in essence, the same claims as for the two previous proceedings. More specifically, the written observations submitted by the partner (26 hours) and the associate lawyer (25.8 hours) on the impact of the judgment in Case C‑638/11 P on the subsequent stages of the proceedings before the General Court exceed, in its view, the hours of work which may be regarded as necessary. Similarly, according to the applicant, the costs associated with the number of hours invoiced by the external lawyers in preparing requests for an extension of time were not necessary.
67 As a preliminary point, as the applicant submits, the costs associated with the number of hours invoiced by the external lawyers of the Council in preparing requests for an extension of time do not constitute necessary expenses, unless that extension was to be regarded as necessary on the basis of the conduct of the applicant; however, such an argument has not been put forward by the Council, nor is it apparent from the file.
68 Similarly, it is apparent from paragraph 25 of the order of 17 May 2017, VTZ and Others v Council (T‑432/12 DEP, not published, EU:T:2017:397, and the case-law cited), by analogy, that the external lawyers’ fees of the Council corresponding to the coordination of the work with the Commission, must be excluded from recoverable costs, in so far as that coordination was not requested by the Court. Such costs cannot be categorised as expenses incurred for the purpose of the proceedings. That coordination work cannot therefore be taken into account in the assessment of the hours of work objectively necessary for the purpose of the proceedings.
69 In those circumstances, the costs claimed by the Council should be taxed as follows:
– in the invoice of 1 May 2014, first, half of the time stated in the accounting lines of 2, 11 and 14 April 2014 must be disregarded, since they relate in part to communications with the Commission; 3.125 hours of work by the partner must therefore be deducted; second, the first two accounting lines of 8 April 2014 must be disregarded since they relate to the costs associated with preparing the requests for an extension of time which do not constitute necessary expenses; 0.75 hours of work by the partner and 5.50 hours by the associate lawyer must therefore be deducted; third, the accounting line of 10 April 2014 must be disregarded in so far as it relates to some duplication, the new external lawyers reading the file on the previous stages of the proceedings; 2.25 hours of work by the partner must therefore be deducted;
– in the invoice of 30 November 2015, the accounting lines relating to communications with the Commission and those relating to the requests to extend the time limits (dated 21 and 30 September 2015, 1 and 5 October 2015, 24 November 2015, and half of the hours stated for 2 and 6 October 2015) must be disregarded; five hours of return journey from Brussels to Luxembourg invoiced at the same hourly rate as that applied to legal work (the accounting lines of 25 and 26 November 2015) must also be deducted; overall, 12.1 hours by the partner and 1.7 hours by the associate lawyer must be deducted;
– in the invoice of 31 December 2015, in so far as the coordination with the Commission is concerned, half the time stated in the accounting lines of 8 December 2015 and the whole time in those of 9, 18 and 24 December must be disregarded; that includes in total 4.45 hours of work by the partner.
70 The other accounting headings stated in the invoices do not appear excessive or disproportionate in relation to the work required. In that context, the Court considers it appropriate, taking into account all the relevant factors, including the financial significance of the proceedings and the financial interests which the parties had in the proceedings, to fix the lawyers’ fees recoverable in respect of the main proceedings in Case T‑199/04 RENV at EUR 23 025.75.
71 It follows from all of the foregoing that, a total sum of EUR 106 424.60 should be regarded as recoverable external lawyers’ fees, in respect of the three cases in question.
The costs claimed in the three proceedings in respect of disbursements other than the fees of external lawyers
72 As regards travel and subsistence expenses of the external lawyers of the Council and certain other costs, in the first place, in respect of Case T‑199/04, the invoice of 18 November 2010 stated an amount of EUR 659.51 as travel expenses (EUR 143.01), photocopies (EUR 65.40) and accommodation and meals (EUR 451.10). However, it must be held that those various expenses are not detailed and that the external lawyers of the Council have not adduced any evidence other than the invoice of the abovementioned in order to justify their amount.
73 It is, however, for the person applying for costs to adduce evidence establishing the authenticity and the amount of the travel and subsistence expenses in respect of which he claims reimbursement. Neither the party ordered to pay the costs nor the Court can be required to assess such costs on the basis, as in the present case, of a mere indicative figure provided by the person applying for costs (order of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 34). In those circumstances, the whole amount of EUR 659.51, stated on the invoice of 18 November 2010, must be rejected.
74 In the second place, as regards Case C‑638/11, the invoice of 22 April 2013 states an amount of EUR 204.50 as travel and subsistence expenses of the external lawyers of the Council. Those costs must be disregarded in their entirety for the same reason as that stated in paragraphs 72 and 73 above, that is to say, on the ground of the lack of supporting evidence.
75 In the third place, for those same reasons, the costs relating to the travel of the lawyers in the referral proceedings, in the amount of EUR 595.15, stated in the invoice of 30 November 2015 without any supporting evidence, must be disregarded.
76 Apart from the abovementioned costs, the Council has also claimed, first, photocopying expenses, specifically set out in the annex to the letter of 9 March 2017 in respect of the three proceedings, for an overall amount of EUR 52.40. Since those claims are detailed clearly, they should be allowed as repayable costs.
77 Second, according to the requests of the Council, EUR 100.38 claimed in the annex to the letter of 9 March 2017 for postage of recorded deliveries in the three proceedings at issue must be granted.
78 Third, the application of the Council concerning travel costs of its agents to the hearings in the three cases in the main proceedings, totalling EUR 488.50, the records of mission expenses of which state that tickets have been provided, must be granted.
79 In the light of all of the foregoing considerations, it would be an appropriate assessment of the recoverable costs to fix their total amount at EUR 107 065.88.
80 Since that amount takes account of all the circumstances of the case up to the date of this order, there is no need to give a separate ruling on the repayment of the costs incurred by Gul Ahmed Textile Mills Ltd for the purpose of the present proceedings on taxation of costs.
The application for default interest
81 The Council submits that the obligation to pay default interest derives from Article 99 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 (OJ 2018 L 193, p. 1). According to the Council, since, on 15 March 2017, the ECB interest rate applicable to its principal refinancing operations was 0%, default interest amounted to 3.5%. In any event, it argues, default interest is due at the latest from the date of the notification to the applicant of the order of the General Court in the present proceedings for taxation of costs.
82 The applicant submits, in essence, that the Council cannot claim default interest for time elapsing before a ruling on the taxation of costs is delivered by the General Court. Consequently, its claim relating to default interest is inadmissible in its entirety.
83 In that regard, it should be noted that, in accordance with the case-law, the finding of any obligation to pay default interest and the fixing of the applicable rate fall within the jurisdiction of the General Court under Article 170(1) to (3) of the Rules of Procedure (see, by analogy, orders of 25 March 2014, Marcuccio v Commission, T‑126/11 P-DEP, EU:T:2014:171, paragraph 51, and of 29 September 1995, ENU v Commission, C‑2/94 SA, EU:C:1995:301, paragraph 10).
84 However, it is settled case-law that an obligation to pay default interest can arise only where the amount of the principal sum is certain or can at least be ascertained on the basis of established objective factors (judgment of 1 June 1994, Commission v Brazzelli Lualdi and Others, C‑136/92 P, EU:C:1994:211, paragraph 53 and the case-law cited, and order of 16 May 2014, Marcuccio v Commission, T‑491/11 P-DEP, EU:T:2014:513, paragraph 31). The right of the Council to recovery of the costs has its legal basis in the order fixing those costs (see, to that effect, order of 18 April 1975, Europemballage and Continental Can v Commission, 6/72-DEPE, EU:C:1975:50, paragraph 5). Consequently, an application for an award of default interest calculated from a date prior to the date on which the order that fixed the costs was made must be dismissed (orders of 6 January 2004, Mulder and Others v Council and Commission, C‑104/89 DEP, EU:C:2004:1, paragraph 86, and of 24 October 2011, Marcuccio v Commission, T‑176/04 DEP II, EU:T:2011:616, paragraph 36).
85 By contrast, the Council’s application must be upheld in so far as it seeks the fixation of default interest for the period between the date of notification of the present order and the date of the actual repayment of the costs (see, to that effect, order of 3 May 2011, Comtec Translations v Commission, T‑239/08 DEP, EU:T:2011:191, paragraph 39).
86 As regards the interest rate applicable, the Court considers it appropriate to take account of Article 99(2)(b) of Regulation No 2018/1046. Consequently, the rate applicable is calculated on the basis of the rate applied by the European Central Bank (ECB) to its principal refinancing operations in force on the first day of the month in which payment is due, in this case the date of notification of the present order, increased by three and a half percentage points.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
The total amount of costs that Gul Ahmed Textile Mills Ltd must repay to the Council of the European Union in respect of Cases T‑199/04, C‑638/11 P and T‑199/04 RENV is fixed at EUR 107 065.88, to which shall be added default interest from the date of the notification of the present order until the date of payment of the total amount owed, at a rate equal to that applied by the European Central Bank (ECB) to its principal refinancing operations in force on the first day of the month in which payment is due, increased by three and a half percentage points.
Luxembourg, 12 May 2021.