ORDER OF THE GENERAL COURT (Fifth Chamber)
13 May 2019(*)
(Procedure — Taxation of costs — Lawyers’ fees — Recoverable costs)
In Case T‑425/13 DEP,
Giant (China) Co. Ltd, established in Kunshan (China), represented by P. De Baere, lawyer,
applicant,
v
Council of the European Union, represented by S. Boelaert, acting as Agent, and by B. O’Connor, Solicitor, and S. Gubel, lawyer,
defendant,
supported by
European Bicycle Manufacturers Association (EBMA), represented by L. Ruessmann, lawyer, and J. Beck, Solicitor
and by
European Commission, represented by J.‑F. Brakeland and M. França, acting as Agents,
interveners,
APPLICATION for taxation of costs further to the judgment of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896),
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka and I. Ulloa Rubio (Rapporteur), 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 19 August 2013 and registered as Case T‑425/13, the applicant, Giant (China) Co. Ltd, brought an action seeking the annulment of Council Regulation (EU) No 502/2013 of 29 May 2013 amending Implementing Regulation (EU) No 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009. The Court granted leave to the European Commission and to the European Bicycle Manufacturers Association (EBMA) to intervene in support of the form of order sought by the Council of the European Union, by orders of 26 November 2013 and 24 February 2014, respectively.
2 By judgment of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896), the Court annulled Regulation No 502/2013 so far as it concerned the applicant and ordered the Council to bear its own costs and to pay those incurred by the applicant.
3 By letter of 12 January 2018, the applicant requested the Council to reimburse a total amount of EUR 146 460.96, comprising (i) the fees invoiced by its lawyers, in the amount of EUR 145 131, and (ii) the expenses incurred in respect of travel to and subsistence in Luxembourg for two of its lawyers, in the amount of EUR 1 329.96. That letter was accompanied by a summary table of the costs invoiced.
4 By letter of 10 April 2018, the Council informed the applicant that it considered the amount requested to be excessive and unwarranted and that it did not correspond to the objective necessary costs. The Council submitted a counter-offer which consisted in reimbursing an amount of EUR 18 000, taking the view that that amount would have been sufficient to defend the applicant’s interests. Furthermore, the Council stated that it was prepared to reimburse the costs of travel to and subsistence in Luxembourg for one lawyer only, provided that evidence of those costs was submitted.
5 By letter of 24 August 2018, the applicant declined the Council’s counter-offer and confirmed the amount mentioned in the letter of 12 January 2018 citing, in essence, the difficulties of the case.
6 By letter of 17 September 2018, the Council reiterated its disagreement with the amount of costs claimed by the applicant.
7 It is in those circumstances that, by document lodged with the Court Registry on 18 October 2018, the applicant requested the Court to fix, pursuant to Article 170 of the Rules of Procedure of the General Court, the total amount of the recoverable costs at EUR 146 460.96 and to apply default interest to that amount from the date of the order made in respect of the present application and calculated on the basis of the rate fixed by the European Central Bank (ECB) for its principal refinancing operations and in force on the first calendar day of the month of the deadline for payment, increased by three and a half percentage points.
8 In its observations, lodged with the Court Registry on 7 January 2019, the Council invited the Court to (i) fix the recoverable costs at EUR 18 000, (ii) apply default interest to that sum from the date of service of the order made in respect of the present request until the date of actual payment, to be calculated on the basis of the rate fixed by the European Central Bank for its principal refinancing operations and in force on the first calendar day of the month of the deadline for payment, increased by three and a half percentage points, and (iii) order the applicant to pay the costs of the present proceedings.
Law
9 Under Article 170(3) of the Rules of Procedure of the General Court, if there is a dispute concerning the costs to be recovered, the Court is, on application by the party concerned and after hearing the opposite party, to give its decision by way of an order from which no appeal shall lie.
10 According to Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (see order of the General Court of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 13 and the case-law cited).
11 Moreover, in fixing recoverable costs, the Court takes account of all the circumstances of the case up to the signing of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (order of 26 September 2013, Schräder v OCVV, T‑187/06 DEP, not published, EU:T:2013:522, paragraph 39 and the case-law cited), irrespective of the number of lawyers who carried out that work (order of 9 November 2016, ECB v von Storch and Others, C‑64/14 P-DEP, not published, EU:C:2016:846, paragraph 11 and the case-law cited).
12 In the present case, it follows from the application for taxation of costs that the applicant seeks reimbursement of costs by the Council in the amount of EUR 146 460.96, of which EUR 145 131.00 corresponds to lawyers’ fees and EUR 1 329.96 to the costs of travel to and subsistence in Luxembourg for two of its lawyers. To that end, it submitted, in annex to its application for taxation of costs, a debit note sent to the Council on 12 January 2018, referred to in paragraph 3 above, seeking reimbursement of costs in an amount of EUR 146 460.96. In order to substantiate that amount, the applicant produced, before the Court, a summary table of the costs invoiced.
Lawyers’ fees
The recoverability of lawyers’ fees
13 In the first place, as is apparent from the breakdown of fees submitted by the applicant, it includes in the total amount of its fees an amount of EUR 1 412.50, corresponding to the month of January 2014 in respect of the rectification of the reply. The expenses and fees invoiced in respect of the rectification of the applicant’s reply are not recoverable. It is the responsibility of the applicant’s counsel to lodge procedural documents in due form. Accordingly, 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 (see order of 6 October 2017, Keil v EUIPO — NaturaFit Diätetische Lebensmittelproduktions (BasenCitrate), T‑330/15 DEP, not published, EU:T:2017:708, paragraph 26). Consequently, that amount of EUR 1 412.50 cannot form part of the recoverable costs.
14 In the second place, it is also necessary to refuse any recovery by the applicant of costs pertaining to the period following the oral procedure. It should be noted that no step in procedure was taken after 21 May 2015, the date of the hearing, judgment having been reserved in the case. That being so, the costs incurred by the applicant subsequent to that date, namely EUR 10 200, do not appear to be directly related to the proceedings before the Court and cannot, therefore, be regarded as costs necessarily incurred for the purpose of the proceedings, within the meaning of Article 140(b) of the Rules of Procedure (see, by analogy, order of 10 April 2014, Éditions Odile Jacob v Commission, T‑279/04 DEP, not published, EU:T:2014:233, paragraph 39).
The amount of recoverable lawyers’ fees
15 In support of its application, the applicant argues that the case in question raised complex and novel legal issues. It claims that the case is of systemic importance for future antidumping investigations and is not without relevance in the light of EU law. Furthermore, the applicant adds that the fact that the judicial proceedings lasted two and a half years and that the judgment given is 12 pages in length attests to the difficulty of the task with which it was faced, obliging it to undertake a considerable amount of work.
16 The Council disputes those assertions and takes the view that the sum sought by the applicant is excessive. In that connection, it contends that the degree of complexity of the case in question is not very high and is not of particular importance from the point of view of EU law. According to the Council, the number of working hours claimed by the applicant cannot be regarded as costs necessarily incurred for the purpose of the proceedings at issue. To that end, the Council claims that there is substantial overlap in the pleas raised by the applicant and contends that the latter submitted similar arguments during the pre-litigation administrative procedure and the proceedings before the Court.
17 It should be recalled at the outset that the EU judicature does not have jurisdiction 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 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 the General Court of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:194, paragraph 17 and the case-law cited).
18 It is also settled case-law that, 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 subject matter and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest that the parties had in the proceedings (see order of the General Court of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:194, paragraph 18 and the case-law cited).
19 In that connection, it must be held that, amongst those different requirements, those alleging the amount of work required and the difficulties presented by the case serve to determine the number of working hours which may be regarded as being, in any event, strictly necessary for the handling of the case at hand, whereas the others are aimed at verifying whether, as the case may be, there were particular circumstances justifying the devotion of additional working hours to it (see order of 4 July 2017, AESA v Heli-Flight, C‑61/15 P-DEP, not published, EU:C:2017:530, paragraph 19).
20 It is therefore appropriate to assess, in accordance with the requirements set out in paragraph 18 above, the amount of recoverable costs, which, in the present case, total EUR 133 518.50, namely, according to the applicant, an amount of EUR 145 131.00 from which, as has been stated in paragraphs 13 and 14 above, the sum of EUR 11 612.50 should be subtracted.
21 First, as to the subject matter and nature of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, the Court notes that, on the substance, the case in the main proceedings related to an application for annulment in the area of anti-dumping based on eight pleas in law, alleging (i) infringement of Article 9(5) of Regulation No 1225/2009, in so far as the Council had applied the incorrect legal criterion in finding that Jinshan, a Chinese company, and the applicant formed a single entity; (ii) a manifest error of assessment, in so far as the Council had concluded that the applicant’s group of companies and the Jinshan group of companies had a close commercial and structural relationship; (iii) infringement of Article 18 of Regulation No 1225/2009; (iv) a manifest error of assessment, in so far as the Council had considered that the applicant had not suggested that obtaining the information relating to Jinshan represented an unreasonable burden; (v) a manifest error of assessment, in so far as the Council had considered that the applicant’s statements, according to which there was no relationship between the applicant and the other companies belonging to the Jinshan group, could not be verified; (vi) infringement of the rights of the defence, in so far as the Council had required information which the applicant was unable to provide and had rejected the evidence that was presented to it; (vii) a manifest error of assessment, in so far as the Council considered that the imposition of an individual duty on the applicant would have created a risk of circumvention; and (viii) infringement of the principles of non-discrimination and proportionality with regard to the criteria applied to assess the existence of a risk of circumvention. The third plea in law comprised two parts. The Court, in the judgment in Giant (China) v Council (paragraph 2 above, EU:T:2015:896), examined two pleas and one of the two parts of the third plea only.
22 In that connection, it should be noted, as the applicant observes, that the case in question concerned a novel legal issue relating to the concept of ‘necessary information’ within the meaning of Article 18(1) of Regulation No 1225/2009. The case in question in fact clarifies the limits of the Commission’s discretion to request information from interested parties and lays down the conditions in which the failure to provide requested information might justify the use of the ‘facts available’.
23 However, it is clear that, irrespective of the potential complexity of the economic issues the case in the main proceedings involved, the degree of legal difficulty of the questions of law raised by the present case cannot be described as exceptional. Consequently, it must be held that, in the light of the subject matter and nature of the dispute, its significance from the point of view of EU law cannot justify the amounts incurred by the applicant.
24 Second, as to the financial interest that the parties had in the proceedings, it should be noted that Regulation No 502/2013 imposed a definitive anti-dumping duty at a rate of 48.5% on imports of bicycles originating in the People’s Republic of China. While the case was, admittedly, of financial interest, that interest cannot be regarded as unusual or significantly different from that which underpins any procedure imposing definitive anti-dumping duties.
25 Thirdly, as to the assessment of the amount of the work generated by the judicial proceedings, the primary consideration for the EU judicature is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (see order of 12 January 2016, Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09 DEP, not published, EU:T:2016:14, paragraph 23 and the case-law cited).
26 Moreover, it should be recalled that, according to the case-law, it is necessary to consider the hourly rate which the applicant seeks to have applied, 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 purposes of the proceedings concerned (see order of 12 January 2016, Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09 DEP, not published, EU:T:2016:14, paragraph 24 and the case-law cited).
27 In the present case, it is apparent from the detailed breakdown of fees produced by the applicant in annex to its application for taxation of costs that the 305 hours and 30 minutes, approximately, invoiced by its lawyers included, in essence, the drafting of the application, the drafting of the reply, the preparation of non-confidential versions of those documents and the drafting of observations on the statements in intervention lodged by the intervening parties.
28 Furthermore, 75 hours and 45 minutes were invoiced in respect of the oral part of the procedure. They included the reading and verification of the report for the hearing, the preparation of the pleadings for the hearing of 21 May 2015 and the participation in the hearing.
29 The completion of those tasks involved the work of a partner (185 hours and 30 minutes approximately) at an hourly rate of EUR 550; a junior associate (130 hours and 30 minutes approximately) at an hourly rate of EUR 225, and, last, a junior associate (65 hours and 45 minutes approximately) at an hourly rate of EUR 175.
30 It should be recalled that while, in principle, the remuneration of only one lawyer is recoverable, it is possible that, depending on the individual circumstances and, most importantly, the complexity of the case, the fees of a number of lawyers may be considered necessary expenses. However, 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 have provided the services in question (order of 25 November 2009 in Hynix Semiconductor v Council, T‑383/03 DEP, not published, EU:T:2009:466, paragraphs 42 and 43 and the case-law cited).
31 In the present case, the number of working hours claimed by the applicant appears excessive in relation the assessment of the amount of recoverable costs.
32 So far as concerns, in the first place, the written part of the procedure, it is apparent from the breakdown of lawyers’ fees that, at the very least, 305 hours and 30 minutes of work were carried out by a partner and a junior associate. Of those 305 hours and 30 minutes, approximately 120 hours were spent preparing the application, which comprised 42 pages and 3 annexes. In addition, approximately 113 hours were spent drafting the reply, which comprised 28 pages and 1 annex. Finally, approximately 71 hours were spent preparing non-confidential versions of the application and reply and drafting observations on the statements in intervention lodged by the intervening parties. That number of hours exceeds the number of working hours which may be regarded as necessary for the purposes of the proceedings at issue in the present case. The Court finds that, in the present case, 100 hours spent drafting the application, 40 hours spent drafting the reply and 20 hours spent preparing non-confidential versions of the application and reply and drafting observations on the statements in intervention lodged by the intervening parties are the limit of what could be regarded as necessary.
33 So far as concerns, in the second place, the oral part of the procedure, it is clear that the hours spent on it — namely, a total of 75 hours and 45 minutes — are also too high given that, in particular, they include 37 hours and 30 minutes of work by a partner in the law firm representing the applicant, which partner had been involved in the pre-litigation procedure. It is appropriate to recognise 30 hours of work in total as being necessary in this case.
34 Moreover, it is apparent from the application for taxation of costs that the weighted average rate was EUR 345, which appears excessive. The average rate to be used in the present case cannot exceed EUR 285, which can be regarded as an appropriate hourly rate for remunerating the services of a particularly experienced professional, capable of working very efficiently and quickly.
35 In the light of the foregoing, it must be held, with regard to the calculation of necessary costs incurred by the applicant for the purposes of the proceedings, that the case objectively required an experienced lawyer to work for a total of 190 hours, the remuneration of which cannot exceed an hourly rate of EUR 285. Accordingly, the recoverable costs in respect of lawyers’ fees can be assessed on an equitable basis by fixing their amount at EUR 54 150.
Lawyers’ disbursements
36 As has been set out in paragraph 12 above, the applicant claims that the Council must reimburse it a sum of EUR 1 329.90 in respect of the costs of travel to and subsistence in Luxembourg for two of its lawyers for the purposes of their participation in the hearing of 25 May 2015.
37 The Council contends that the travel and subsistence expenses relating to the hearing before the Court incurred by the applicant were unexplained, unproven and inappropriately high. To that end, it stated that it was prepared to reimburse travel and subsistence costs for one lawyer only, provided that evidence of those costs was submitted.
38 In that connection, it should be recalled that, according to the case-law, in principle, the remuneration of one lawyer only is recoverable, unless, depending on the individual circumstances of each case, the involvement of a number of lawyers may be considered to fall under the concept of necessary expenses (see, to that effect and by analogy, order of 13 June 2012, Trioplast Industrier v Commission, T‑40/06 DEP, not published, EU:T:2012:286, paragraph 59 and the case-law cited).
39 In this instance, the Court considers that the present case did not give rise to any specific circumstances justifying the consideration of the expenses incurred in respect of two lawyers, for the purposes of their participation in the hearing, as necessary within the meaning of Article 140(b) of the Rules of Procedure. Moreover, it is clear from the minutes of the hearing that only one of the applicant’s lawyers did in fact participate in the audience of 21 May 2015. It is therefore necessary to admit only the expenses incurred by the sole lawyer of the intervener that pleaded at the hearing, those of Mr P. De Baere.
40 Accordingly, it must be held that, in the application for taxation of costs, the applicant has failed to detail the methods of calculation of the total amount of EUR 1 329.96. At most, the Court notes that that sum is set out on the last page of the summary table of expenses invoiced, submitted in Annex 1. That amount is broken down into the following two entries. The first states the amount relating to the subsistence costs in Luxembourg for two of its lawyers, namely, EUR 677, while the second relates to transport costs, namely, EUR 652. Moreover, it is clear that no documentary evidence has been provided in support of the description of the costs of travel to and subsistence in Luxembourg incurred by the applicant’s lawyers.
41 Therefore, in the light of the absence of supporting documents and given that, first, the law firm’s registered office at which it provides its services is located in Brussels and, second, Mr P. De Baere attended the hearing, it must be held that only the travel expenses of one of the applicant’s lawyers incurred attending the hearing are recoverable and their amount must be fixed at a reasonable minimum.
42 Consequently, the travel costs recoverable by the applicant can be assessed on an equitable basis by fixing their amount at EUR 100.
Claim for default interest
43 The applicant requests that the Court order the Council to pay default interest on the amount of costs to be reimbursed, from the date of the present order.
44 In that regard, it should be borne in mind that the finding of any obligation to pay default interest and the setting of the applicable rate fall within the jurisdiction of the Court under Article 170(1) and (3) of the Rules of Procedure (see order of 15 December 2016, Marcuccio v Commission, T‑229/13 P-DEP, not published, EU:T:2016:755, paragraph 31 and the case-law cited).
45 According to settled case-law, an application made in the course of proceedings for taxation of costs for default interest to be added to the amount due must be allowed for the period between the date of service of the order of taxation of costs and the date of actual recovery of the costs (see order of 15 December 2016, Marcuccio v Commission, T‑229/13 P-DEP, not published, EU:T:2016:755, paragraph 32 and the case-law cited).
46 With regard to the applicable rate of interest, the 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 interest rate is to be calculated on the basis of the rate applied by the European Central Bank (ECB) to its principal refinancing operations and 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 (see order of 27 April 2016, Marcuccio v Commission, T‑385/13 P-DEP, not published, EU:T:2016:755, paragraph 33 and the case-law cited).
47 It must therefore be held that the amount of recoverable costs is to bear default interest, from the date of service of this order, at a rate calculated on the basis of the rate set by the European Central Bank for principal refinancing operations applicable during the period concerned, increased by three and a half percentage points.
The Council’s request that the applicant be ordered to pay the costs of these proceedings
48 The Council’s request seeking that the Court ‘order [the applicant] to bear the costs incurred [by the Council] in the present taxation of costs proceedings’ must be rejected. It should be recalled that, in fixing the recoverable costs, it is not necessary for the Court to adjudicate separately on the costs incurred for the purposes of those proceedings since, unlike Article 133 of the Rules of Procedure, which provides that a decision as to costs is to be given in the judgment or order which closes the proceedings, Article 170 of the Rules of Procedure contains no such provision (see order of 13 March 2017, Euroscript — Polska v Parliament, T‑48/12 DEP, not published, EU:T:2017:193, paragraph 44 and the case-law cited).
On those grounds,
THE GENERAL COURT (Fifth Chamber),
Hereby orders:
1. The total amount of the costs to be reimbursed by the Council of the European Union to Giant (China) Co. Ltd is fixed at EUR 54 250.
2. Interest for late payment will be paid on that sum from the date of service of the present order to the date of its actual payment, at the rate set by the European Central Bank for its principal refinancing operations in force on the first day of the calendar month of the deadline for payment, increased by three and a half percentage points.
3. The Council’s request that Giant (China) Co. Ltd be ordered to pay the costs of these proceedings is rejected.
Luxembourg, 13 May 2019.