ORDER OF THE GENERAL COURT (Sixth Chamber)
10 April 2018 (*)
(Procedure – Taxation of costs)
In Case T-469/07 DEP,
Philips Lighting Poland SA, established in Piła (Poland),
Philips Lighting BV, established in Eindhoven (Netherlands),
applicants,
supported by
GE Hungary Ipari és Kereskedelmi Zrt. (GE Hungary Zrt), established in Budapest (Hungary), represented by P. De Baere, lawyer,
and by
Hangzhou Duralamp Electronics Co., Ltd, established in Hangzhou (China),
interveners,
v
Council of the European Union, represented by B. Driessen, acting as Agent,
defendant,
supported by
Osram GmbH, established in Munich (Germany),
and by
European Commission,
interveners,
APPLICATION for taxation of costs to be reimbursed by an intervener, GE Hungary Ipari és Kereskedelmi Zrt. (GE Hungary Zrt), to the defendant following the judgment of 11 July 2013, Philips Lighting Poland and Philips Lighting v Council (T‑469/07, EU:T:2013:370),
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, S. Papasavvas (Rapporteur) and O. Spineanu-Matei, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 21 December 2007, the applicants, Philips Lighting Poland SA and Philips Lighting BV, brought an action seeking the annulment of Council Regulation (EC) No 1205/2007 of 15 October 2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2007 L 272, p. 1) (‘the contested regulation’).
2 GE Hungary Ipari és Kereskedelmi Zrt. (‘GE Hungary Zrt’), intervened in support of the applicants. It contended that the contested regulation should be annulled and that the Council of the European Union should be ordered to pay the costs.
3 By judgment of 11 July 2013, Philips Lighting Poland and Philips Lighting v Council (T‑469/07, EU:T:2013:370), the Court dismissed the action and, inter alia, ordered GE Hungary Zrt to bear its own costs and to pay those incurred by the Council in connection with its intervention, pursuant to Article 87(2) of its Rules of Procedure of 2 May 1991. The applicants appealed against that judgment.
4 By letter of 24 January 2014, the Council requested GE Hungary Zrt to pay to it the amount of its costs, which it calculated to be EUR 11 560.70. GE Hungary Zrt did not reply to that letter.
5 By judgment of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council (C‑511/13 P, EU:C:2015:553), the Court of Justice dismissed the appeal brought by the applicants.
6 By letter of 28 September 2015, the Council repeated its request to GE Hungary Zrt to pay it the amount of costs that it had incurred in relation to Case T‑469/07. That letter also received no response.
7 By application lodged at the Court Registry on 4 October 2017, the Council lodged, pursuant to Article 170(1) of the Rules of Procedure of the General Court, an application for taxation of costs by which it requested the Court to fix the amount of the recoverable costs to be reimbursed to it by GE Hungary Zrt at EUR 11 560.70, to add default interest to that amount, and to provide it with an authenticated copy of the order.
8 By decision of 19 December 2017, the Court (Sixth Chamber) set 31 January 2018 as the deadline for GE Hungary Zrt to submit its observations. GE Hungary Zrt did not submit any observations within the prescribed period.
Law
The amount of recoverable costs
9 As provided in Article 170(1) to (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 other party, is to make an order from which no appeal lies.
10 According to Article 140(b) of the Rules of Procedure, which corresponds to Article 91(b) of the Rules of Procedure of 2 May 1991, ‘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.
11 It is settled case-law that the EU Courts do not have jurisdiction to tax the fees payable by the parties to their own lawyers, but 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 27 January 2016, ANKO v Commission and REA, T‑165/14 DEP, not published, EU:T:2016:108, paragraph 19 and the case-law cited).
12 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 27 January 2016, ANKO v Commission and REA, T‑165/14 DEP, not published, EU:T:2016:108, paragraph 20 and the case-law cited).
13 In order to make an assessment, on the basis of the criteria listed in paragraph 12 above, as to whether the expenses actually incurred for the purposes of the proceedings were in fact necessary, the applicant must provide specific information. 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 in which its assessment of the applicant’s claims must necessarily be strict (see order of 23 May 2014, Marcuccio v Commission, T‑286/11 P-DEP, not published, EU:T:2014:312, paragraph 13 and the case-law cited).
14 In addition, it should be noted that, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the date of the order for taxation of costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (order of 23 March 2012, Kerstens v Commission, T‑498/09 P-DEP, not published, EU:T:2012:147, paragraph 15).
15 Furthermore, it is clear from the first paragraph of Article 19 of the Statute of the Court of Justice, 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 latter’s remuneration is therefore covered by the concept of expenses necessarily incurred for the purposes of the proceedings, without the institution being required to show that such assistance was objectively warranted (see order of 28 May 2013, Marcuccio v Commission, T‑278/07 P-DEP, EU:T:2013:269, paragraph 14 and the case-law cited).
16 It is in the light of those considerations that the amount of recoverable costs in the present case must be assessed.
17 In support of its application, the Council submits that the proceedings in question, relating to the legality of anti-dumping duties, were complex, and notes that the applicants had put forward three pleas in law in support of their action. The Council adds that the fact that the judicial proceedings lasted six years and that the judgment was 18 pages long demonstrates that this was a difficult case requiring a considerable amount of work.
18 First, with regard to the subject matter and nature of the dispute, its significance from the point of view of EU law, and the difficulties presented by the case, it must be recalled that that dispute concerned the annulment of the contested regulation. In support of their action, the applicants raised three pleas. The first alleged infringement of Article 3(1), Article 9(4) and Article 11(2) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17) (‘the basic regulation’), in that the Council had failed to established that the expiry of the anti-dumping measures at issue would be likely to lead to a continuation or recurrence of injury to the EU industry as defined in Article 4(1) of the basic regulation, read in conjunction with Article 5(4) thereof. The second plea alleged that the Council committed an error of law in applying Article 9(1) of the basic regulation to a situation that did not come within the scope of that provision. Finally, the third plea alleged infringement of the obligation to state reasons in that the Council had failed to provide adequate justification for its assessment of the support from EU producers for a continuation of the anti-dumping measures at issue and its conclusion on the balancing of the interests of the European Union.
19 It is clear that the case raised novel legal issues relating to the application of the basic regulation and to the implementation of the expiry review procedure under Article 11(2) of that regulation. In particular, it raised the question as to whether Article 9(1) of the basic regulation, relating to the withdrawal of a complaint in the case of proceedings leading to the imposition of new measures, applied to review procedures. Moreover, it should be noted that the judgment was published in the European Court Reports. In those circumstances, the dispute was of certain interest from the point of view of EU law as a whole.
20 Nevertheless, in the light of the subject matter and nature of the dispute, and of the difficulties presented by the case, it is appropriate to hold, notwithstanding the fact that cases relating to anti-dumping tend to raise complex economic, legal or factual issues which are often highly technical, that the degree of difficulty of the issues raised by the present case cannot be categorised as exceptional.
21 Secondly, as regards the financial interests that the parties had in the proceedings, it should be noted that the contested regulation imposed a definitive anti-dumping duty at rates ranging from 0% to 66.1% applicable to the net, free-at-Union-frontier price, before duty, on imports of electronic compact fluorescent discharge lamps functioning on alternating current (including electronic compact fluorescent discharge lamps functioning on both alternating and direct current), with one or more glass tubes, with all lighting elements and electronic components fixed to the lamp foot, or integrated in the lamp foot, falling within CN code ex 8539 31 90 [TARIC (Integrated Tariff of the European Union) code 8539319095] and originating in the People’s Republic of China. While the case admittedly presented a financial interest, that interest cannot, in the total absence of specific evidence produced by the Council in its application, be considered to be unusual or significantly different from that underlying any proceedings establishing definitive anti-dumping duties.
22 Thirdly, in regard to the assessment of the extent of the work generated by the judicial proceedings, the Council takes the view that the amount of EUR 11 560.70, equivalent to 39.9 hours, invoiced by its lawyers is not excessive.
23 In this regard, it must be pointed out that the primary consideration of the EU Courts is the total number of hours worked which appear to have been objectively indispensable 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 14 May 2013, Arrieta D. Gross v OHIM, T‑298/10 DEP, not published, EU:T:2013:237, paragraph 19 and case-law cited).
24 Moreover, it should be recalled that, according to the case-law, it is necessary to consider the hourly rate which it is sought 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. Accordingly, the taking into account of such a level of remuneration must be counterbalanced by a necessarily strict evaluation of the total number of hours of work essential for the purposes of the proceedings concerned (see order of 14 May 2013, Arrieta D. Gross v OHIM, T‑298/10 DEP, not published, EU:T:2013:237, paragraph 20 and the case-law cited).
25 It should also be noted that the division of the work of preparing the pleadings among several lawyers necessarily involves some duplication of effort. In those circumstances, the Court cannot allow the total number of hours of work claimed as being objectively indispensable to the judicial proceedings (order of 13 July 2017, ETAD v Commission, T‑419/11 DEP, not published, EU:T:2017:515, paragraphs 29 and 30).
26 In the present case, it is apparent from the invoices submitted by the Council as an annex to its application that the 39.9 hours billed by its lawyers accounted, in essence, for the analysis of the statement in intervention of GE Hungary Zrt (six pages) and the drafting of observations in that regard, as well as correspondence with the Commission’s Directorate General for Trade, the Commission’s legal service and the Council’s legal service.
27 It appears from the documents submitted by the Council that the completion of those tasks required the work of a partner (4.1 hours in total) at an hourly rate of EUR 401, and the work of an associate (35.8 hours in total) at an hourly rate of EUR 277.
28 As regards the number of hours of work claimed by the Council, it must be borne in mind that, even though the present case raised novel legal issues, it did not present particular difficulties. In addition, it should be noted that GE Hungary Zrt merely repeated the arguments raised by the applicants without raising any additional arguments. In those circumstances, the Court finds that the number of hours of work claimed by the Council is excessive.
29 In the light of the foregoing considerations, the Court sets the total amount of working time objectively indispensable for the Council’s lawyers to analyse the statement in intervention of GE Hungary Zrt and to draft observations on that statement at 20.1 hours, corresponding to 4.1 hours of work by a partner and 16 hours of work by an associate.
30 Accordingly, the fees recoverable by the Council can be assessed on an equitable basis at EUR 6 076.10.
Claim for default interest
31 The Council requests that default interest, as from 24 January 2014 or any other date set by the Court, be added to the amount of recoverable costs.
32 In that regard, it should be borne in mind that a finding, where appropriate, that there is an obligation to pay default interest and setting an applicable rate is a matter within the Court’s jurisdiction pursuant to Article 170(1) and (3) of the Rules of Procedure (see order of 19 July 2017, Yanukovych v Council, T‑348/14 DEP, not published, EU:T:2017:549, paragraph 64 and the case-law cited).
33 According to well-established 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 notification of the order of taxation of costs and the date of actual recovery of the costs (see order of 19 July 2017, Yanukovych v Council, T‑348/14 DEP, not published, EU:T:2017:549, paragraph 65 and the case-law cited).
34 With regard to the applicable interest rate, the Court considers it appropriate to take account of 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 ECB to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first day of the calendar month of the deadline for payment, increased by three and a half percentage points (see order of 19 July 2017, Yanukovych v Council, T‑348/14 DEP, not published, EU:T:2017:549, paragraph 66 and the case-law cited).
35 In those circumstances, the total amount of costs recoverable by the Council from GE Hungary Zrt in relation to the main proceedings amounts to EUR 6 076.10, plus default interest from the date of service of the present order.
The request for an authenticated copy of the present order
36 The Council’s head of claim seeking that it be provided with an authenticated copy of the present order must be rejected as inadmissible. Such a request is purely administrative and falls outside the scope of the present proceedings concerning the taxation of the Council’s recoverable costs (see, to that effect, order of 10 March 2017, Penny-Markt v EUIPO — Boquoi Handels (B !O), T‑364/14 DEP, not published, EU:T:2017:179, paragraph 27 and the case-law cited).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The total amount of costs to be reimbursed by GE Hungary Ipari és Kereskedelmi Zrt. (GE Hungary Zrt) to the Council of the European Union is fixed at EUR 6 076.10.
2. Late payment interest shall be due on that amount from the date of service of the present order until the date of payment.
Luxembourg, 10 April 2018.
E. CoulonG. Berardis
RegistrarPresident