ORDER OF THE GENERAL COURT (Fifth Chamber)
25 September 2019 (*)
(Procedure — Taxation of costs)
In Case T‑689/13 DEP II,
Bilbaína de Alquitranes, SA, established in Luchana-Baracaldo, Biscay (Spain), and the other applicants whose names are listed in the Annex, represented by K. Van Maldegem, P. Sellar, M. Grunchard and S. Saez Moreno, lawyers,
applicants,
supported by
GrafTech Iberica, SL, established in Navarra (Spain), represented by K. Van Maldegem, P. Sellar, M. Grunchard and S. Saez Moreno, lawyers,
intervener,
v
European Commission, represented by M. Wilderspin, R. Lindenthal and K. Talabér-Ritz, acting as Agents,
defendant,
APPLICATION for taxation of costs further to the judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767),
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich (Rapporteur), acting as President, V. Tomljenović and J. Schwarcz, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 20 December 2013 and registered under number T‑689/13, the applicants brought an action for annulment in part of Commission Regulation (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, Regulation (EC) No 1272/2008 of the European Parliament and of the Council on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5). The applicants sought annulment of Regulation No 944/2013 in so far as it classified the substance pitch, coal tar, high-temperature (EC No 266‑028‑2; ‘CTPHT’), namely a black solid, composed primarily of a complex mixture of three or more membered condensed ring aromatic hydrocarbons, as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance.
2 By application registered at the Court Registry on 5 May 2014, GrafTech Iberica, SL, applied for leave to intervene in support of the form of order sought by the applicants. By order of 11 July 2014, the Court granted leave to intervene.
3 By judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767), the Court annulled in part Regulation No 944/2013 in so far as it classified CTPHT as an Aquatic Acute 1 (H400) and Aquatic Chronic 1 (H410) substance and ordered the Commission to bear its own costs and to pay those incurred by the applicants and by the intervener GrafTech Iberica.
4 By its appeal, lodged at the Registry of the Court of Justice on 17 December 2015, the Commission requested the Court of Justice to set aside the judgment of the General Court of 7 October 2015. An application for interim measures made by the applicants seeking suspension of the effects of the partially annulled regulation was dismissed by order of the Vice-President of the Court of Justice of 7 July 2016, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P‑R, not published, EU:C:2016:597). By judgment of 22 November 2017, Commission v Bilbaína de Alquitranes and Others (C‑691/15 P, EU:C:2017:882), the Court of Justice dismissed the appeal brought against the judgment of the General Court of 7 October 2015, which therefore became final, and ordered the Commission to pay, in addition to its own costs, those incurred by the applicants, including those relating to the interlocutory proceedings that had given rise to the order of 7 July 2016. The intervener at first instance, GrafTech Iberica, was ordered to bear its own costs.
5 By letters of 29 January 2018, the intervener and the applicants requested the Commission to reimburse a total amount of EUR 227 900.35 in respect of their costs incurred in Cases T‑689/13, C‑691/15 P‑R and C‑691/15 P. After several exchanges of letters, the Commission proposed, by letter of 20 July 2018, to make a payment of EUR 84 500 in respect of all the costs and expenses relating to the proceedings before the General Court and the Court of Justice. The intervener and the applicants declined that proposal by letter of 13 September 2018, while making a counter-offer amounting to EUR 160 000. On 15 November 2018 the Commission made a new proposal of EUR 100 000, which was also rejected by the intervener and the applicants by letter of 19 December 2018. Consequently, the intervener and the Commission did not reach any agreement on the amount of recoverable costs.
6 By document lodged at the Court Registry on 1 July 2019, the intervener submitted the present application for taxation of costs in accordance with Article 170(1) of the Rules of Procedure of the General Court.
7 The intervener claims that the Court should:
– fix the amount of recoverable costs in the case giving rise to the judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767) at EUR 10 690.76;
– fix the amount of recoverable costs relating to the present taxation of costs proceedings at EUR 5 000;
– apply to those amounts interest for late payment from the date of service of the order on the application for taxation of costs until the date of actual payment, at the rate applied by the European Central Bank 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.
8 In its observations lodged at the Court Registry on 7 August 2019, the Commission contends that the Court should:
– dismiss the intervener’s application for taxation of costs; and
– fix the recoverable costs pursuant to Article 140(b) of the Rules of Procedure of the General Court at EUR 3 000.
Law
9 Under Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court, on application by the party concerned and after hearing the observations of the opposite party, is to give its decision by way of an order from which no appeal lies.
10 According to Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purposes of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those costs incurred for the purpose of the proceedings before the Court and, secondly, to those which were necessary for that purpose (order of 6 June 2019, European Dynamics Luxembourg and Others v ECHA, T‑477/15 DEP, not published, EU:T:2019:419, paragraph 10).
11 With regard to lawyers’ fees, it should be borne in mind that, according to settled case-law, the Courts of the European Union are authorised not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs (order of 27 October 2017, Heli-Flight v EASA, T‑102/13 DEP, not published, EU:T:2017:769, paragraph 19 and the case-law cited).
12 It is also settled case-law that, failing any provisions of EU law relating to fee scales or to the necessary working time, the Court is to make an unfettered assessment of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU law and also the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the economic interests that the parties had in the proceedings (order of 19 June 2018, Accorinti and Others v ECB, T‑79/13 DEP, not published, EU:T:2018:365, paragraph 16 and the case-law cited).
13 In order to determine, on the basis of the criteria set out in paragraph 12 above, whether the costs actually incurred for the purposes of the proceedings were necessary, precise information must be supplied by the applicant. 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 nonetheless places it in a situation where its assessment of the applicant’s claims must necessarily be strict (order of 3 November 2014, FRA.BO v Commission, T‑381/06 DEP, not published, EU:T:2014:1123, paragraph 33).
14 It is in the light of those considerations that the Court must examine whether the costs claimed by the intervener are recoverable and determine the amount up to which those costs may be recovered from the Commission.
15 In the present case, it follows from the application for taxation that the costs in respect of which the intervener seeks reimbursement amount to EUR 15 690.76, namely EUR 10 690.76 in respect of costs incurred in the case in the main proceedings and EUR 5 000 in respect of costs relating to the present taxation of costs proceedings.
The costs relating to the case in the main proceedings
16 As regards the case in the main proceedings, it is apparent from a combined reading of the application for taxation of costs and the documents annexed thereto that the amount of EUR 10 690.76 referred to in paragraph 15 above corresponds to the sum of the lawyers’ fees (EUR 10 369) and the costs claimed in respect of disbursements (EUR 321.76).
The lawyers’ fees
17 In support of its request that the recoverable costs in respect of lawyers’ fees be fixed at EUR 10 690.76, the intervener claims that the case in the main proceedings presented a high degree of difficulty and complexity from both a legal and a scientific perspective and that it was of great significance from the point of view of EU law. Furthermore, the intervener submits that the case was also of economic interest to it as a downstream user of CTPHT. In those circumstances, according to the intervener, the amount of work dedicated to its intervention in the case in the main proceedings was objectively necessary.
18 The Commission rejects the intervener’s arguments and contends that the sum claimed in respect of lawyers’ fees is excessive. In essence, the Commission disputes the recoverability of several items taken into account by the intervener and contends that the number of hours claimed manifestly exceeds what is objectively necessary for the handling of a case such as that in the main proceedings.
19 In the present case, the recoverable amount of the lawyers’ fees must be assessed in the light of the criteria set out in paragraph 12 above.
20 In the first place, with regard to the purpose and nature of the proceedings, the significance of the case from the point of view of EU law and the difficulties presented by the case, it must be noted that the case in the main proceedings concerned an action for annulment in part of Commission Regulation No 944/2013. The Commission had determined the classification of the mixture CTPHT as an Aquatic Acute 1 and Aquatic Chronic 1 substance on the basis of the summation method. According to the rules for applying that method, defined in point 4.1.3.5.5 of Annex I to Regulation No 1272/2008, a mixture is to be classified as an Aquatic Acute 1 and Aquatic Chronic 1 substance if the sum of the concentrations of its components, classified in those categories and multiplied by a factor M which depends on the toxicity level of the component in question, is greater than or equal to 25%.
21 In support of their action, the applicants put forward three pleas in law alleging (i) breach of Regulation No 1907/2006 and of Regulation No 1272/2008 and infringement of the principle of equal treatment; (ii) a manifest error of assessment; and (iii) failure to respect the principle of transparency and the rights of the defence. The second plea was divided into four parts, the second of which alleged a manifest error of assessment in applying the summation method to CTPHT. The intervener intervened in the proceedings in support of the form of order sought by the applicants and addressed, in its statement in intervention, the three pleas in law put forward by the applicants.
22 In its judgment of 7 October 2015, Bilbaína de Alquitranes and Others v Commission (T‑689/13, not published, EU:T:2015:767), the Court confined itself to analysing the second part of the second plea. The Court held that the Commission had committed a manifest error of assessment in that, when applying the summation method to CTPHT, it failed to comply with its obligation to take into consideration all the relevant factors and circumstances so as to take due account of the proportion in which the 16 constituents analysed are present in CTPHT and their chemical effects. Accordingly, the Court held that the Commission had wrongly limited its assessment solely to the factors expressly referred to in point 4.1.3.5.5 of Annex I to Regulation No 1272/2008 and had not taken account of the fact that CTPHT, as a whole, had a maximum rate of water solubility of 0.0014%, even though that fact was incompatible with the hypothesis underlying the application of the summation method in the present case that the 16 components analysed, representing 9.2% of CTPHT, dissolved completely in water.
23 It follows that the case in the main proceedings presented some degree of factual complexity by reason of the scientific nature of the data relevant to the classification of the mixture CTPHT. From a legal standpoint, it must be considered that the issue at the heart of the case, as it emerges from paragraphs 20 and 22 above, could not be resolved merely by application of EU law. However, the case cannot be classified as atypical or as presenting a particularly high degree of legal complexity either. Thus, the difficulty in law of the issues raised in the case in the main proceedings was not deemed sufficient to justify its referral to a chamber sitting in extended composition. Furthermore, as follows from paragraph 29 of the judgment delivered in the case in the main proceedings, the Court was able to rely on the consideration already recognised in case-law and in particular in the judgment of 7 March 2013, Bilbaína de Alquitranes and Others v ECHA (T‑93/10, EU:T:2013:106), according to which it cannot be held that, merely because a constituent of a substance has a certain number of properties, the substance itself also has those properties, but, rather, the proportion in which that constituent is present and the chemical effects of such presence must be considered. In that context, it must be noted that the judgment cited above concerns an action brought by the first nine applicants in the case in the main proceedings (or their predecessor in title), that the latter were represented, as was the intervener in the case in the main proceedings, by Mr K. Van Maldegem and Mr P. Sellar, and that the judgment cited also concerned the mixture CTPHT.
24 With regard to the significance of the case in the main proceedings from the point of view of EU law, it admittedly provided clarifications as to the Commission’s obligations when applying the summation method. However, account must also be taken of the considerations set out in paragraph 23 above and of the fact that the legal issues raised by the case in the main proceedings are limited to a specific field narrowly defined under EU law, without major repercussions for EU law as a whole.
25 In the second place, as regards the parties’ economic interest in the proceedings, it must be recalled that the intervener is a downstream user of CTPHT for the manufacture of aluminium, carbon, graphite, ferro-alloys or steel. Owing to the adoption and subsequent entry into force of Regulation No 944/2013, the intervener was required to take measures to comply with the legal consequences of the classification of CTPHT as an Aquatic Acute 1 and Aquatic Chronic 1 substance. It must therefore be acknowledged that the case in the main proceedings is of some economic significance for the intervener.
26 In the third place, as regards the assessment of the amount of work generated by the proceedings before the Court for the intervener’s lawyers, it is clear from the invoices reproduced in Annex A.13 and from the table on page 75 thereof that the intervener estimates that the working time necessary for the purposes of the main proceedings was 29.5 hours that were billed at an average hourly rate of approximately EUR 350. The tasks performed included the drafting of the application for leave to intervene and the statement in intervention (14 hours; 8 and 11 pages) as well as preparation of and participation in the hearing of 10 June 2015 (15.5 hours; duration of the hearing: 3 hours). Performance of those tasks involved 15.5 hours of work by a partner at an hourly rate of EUR 440 (Mr K. Van Maldegem) and 14 hours of work by an experienced associate lawyer at an hourly rate of approximately EUR 250 (Ms M. Grunchard).
27 It must be stated that, even bearing in mind that the case in the main proceedings presented some complexity and difficulty, the number of hours of work claimed by the intervener seems excessive so far as the assessment of the amount of recoverable costs is concerned.
28 In that regard, it is appropriate to bear in mind, first, the case-law cited in paragraph 11 above, according to which the Courts of the European Union are authorised not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs.
29 Secondly, 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 (order of 18 September 2015, Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība and Others v Commission, T‑414/08 DEP to T‑420/08 DEP and T‑442/08 DEP, not published, EU:T:2015:726, paragraph 54). That aspect is particularly important in the present case, bearing in mind that the lawyers representing the intervener in the case in the main proceedings are the same lawyers as those who represented the applicants and therefore already had a very good knowledge of that case.
30 Thirdly, an average hourly rate of EUR 350 for the representation of the intervener in the present case seems somewhat high, with the result that it should be reduced to EUR 280. In any event, it must be recalled that an hourly rate of around EUR 250 to 300 can be regarded as appropriate only as remuneration for the services of a professional with a particularly large amount of experience, able to work very efficiently and fast. Accordingly, in order for remuneration at such a rate to be taken into account there must in return be an assessment, which must be strict, of the total number of hours of work necessary for the purposes of the proceedings before the Court (see order of 18 September 2015, Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība and Others v Commission, T‑414/08 DEP to T‑420/08 DEP and T‑442/08 DEP, not published, EU:T:2015:726, paragraph 51 and the case-law cited).
31 Fourthly, it emerges from a combined reading of the file for the case in the main proceedings and invoice 103 987 7, reproduced on pages 64 and 65 of Annex A.13, that the amount of EUR 925 billed therein includes fees incurred in respect of the rectification of the application for leave to intervene. However, according to case-law, additional expenditure arising from rectification necessitated by the failure to observe certain formal criteria when lodging the documents initially cannot be charged to the other party (order of 6 October 2017, Keil v EUIPO — NaturaFit Diätetische Lebensmittelproduktions (BasenCitrate), T‑330/15 DEP, not published, EU:T:2017:708, paragraph 26).
32 In the light of the foregoing, the Court finds that the working time of 29.5 hours indicated by the intervener exceeds what may be considered objectively necessary for the purposes of the main proceedings. The Court considers that 12.5 hours of work at an average hourly rate of EUR 280 constitute the limit of what might be considered necessary. In those circumstances, the costs recoverable in respect of lawyers’ fees can be assessed on an equitable basis at EUR 3 500.
The disbursements
33 As regards the amount of EUR 321.76, reimbursement of which is sought by the intervener in respect of disbursements, it must be stated, first of all, that, according to the invoices provided, the administrative and other costs were invoiced to it only in the amount of EUR 230.23 (see pages 61 and 67 of Annex A.13). In any event, in the light of the fact that the intervener has not provided evidence making it possible to assess the nature of those costs and whether they were necessarily incurred for the purposes of the proceedings before the Court, it seems justified to fix a lump sum of 5% of the recoverable fees as fixed in paragraph 32 above in respect of disbursements, amounting to EUR 175 (see, by analogy, order of 12 July 2019, RA v Court of Auditors, T‑874/16 DEP, not published, EU:T:2019:550, paragraph 45).
The costs relating to the present taxation of costs proceedings
34 Regarding the costs relating to the present taxation of costs proceedings, which the intervener estimates at EUR 5 000, it must recalled that the Court, when fixing the recoverable costs, takes account of all the circumstances of the case up to the signing of the order on taxation of costs (see order of 13 February 2008, Verizon Business Global v Commission, T‑310/00 DEP, not published, EU:T:2008:32, paragraph 55).
35 In the present case, taking into account the outcome of the present proceedings and the fact that the Commission had proposed, at the pre-litigation stage, to pay a sum exceeding that which the Court considers to be necessary (see page 52 of Annex A.10 and page 58 of Annex A.12), the amount of recoverable costs should not be increased by adding an amount relating to the present proceedings for taxation of costs (see, to that effect, orders of 13 February 2008, Verizon Business Global v Commission, T‑310/00 DEP, not published, EU:T:2008:32, paragraph 56, and of 13 January 2017, Idromacchine and Others v Commission, T‑88/09 DEP, EU:T:2017:5, paragraph 43).
The claim for interest for late payment
36 So far as the intervener’s claim for interest for late payment is concerned, it must be upheld for the period between the date of the service of this order on taxation of costs and the date of the actual reimbursement of the costs (order of 12 October 2017, Marcuccio v Commission, T‑207/12 P‑DEP, not published, EU:T:2017:727, paragraphs 34 and 35). The applicable interest rate is to be calculated, taking into account the provision of 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 (OJ 2018 L 193, p. 1), on the basis of the rate applied by the European Central Bank 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.
37 It follows from all of the foregoing that the total amount of the costs recoverable by the intervener from the Commission in respect of Case T‑689/13 is EUR 3 675 plus interest for late payment from the date of the service of this order.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The total amount of the costs to be reimbursed by the European Commission to GrafTech Iberica, SL, is fixed at EUR 3 675.
2. That sum is to bear interest for late payment from the date of the service of this order until the date of payment.
Luxembourg, 25 September 2019.
Registrar | | Acting President |