ORDER OF THE GENERAL COURT (First Chamber)
25 November 2015 (*)
(Procedure — Taxation of costs)
In Case T‑537/08 DEP,
Cixi Jiangnan Chemical Fiber Co. Ltd, established in Cixi (China),
Cixi Santai Chemical Fiber Co. Ltd, established in Cixi,
Cixi Sansheng Chemical Fiber Co. Ltd, established in Cixi,
Jiangyin Changlong Chemical Fibre Co. Ltd, established in Jiangyin (China),
Ningbo Dafa Chemical Fiber Co. Ltd, established in Cixi,
Xiake Color Spinning Co. Ltd, established in Jiangyin,
Zhejiang Waysun Chemical Fiber Co. Ltd, established in Cixi,
Zhejiang Anshun Pettechs Fibre Co. Ltd, established in Fuyang (China),
represented initially by J.-F. Bellis, lawyer, and G. Vallera, Barrister, and subsequently by J.-F. Bellis, A. Scalini and F. Di Gianni, lawyers,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent,
defendant,
supported by
European Commission, represented initially by M. França and H. van Vliet, and subsequently by M. França and J.-F. Brakeland, acting as Agents,
intervener,
APPLICATION for taxation of the costs to be reimbursed to the Council by Cixi Jiangnan Chemical Fiber Co. Ltd and Others pursuant to the judgment of 13 September 2013 in Cixi Jiangnan Chemical Fiber and Others v Council (T‑537/08, EU:T:2013:428),
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová and E. Buttigieg, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 9 December 2008, the applicants, Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, NingBo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd and Zhejiang Anshun Pettechs Fibre Co. Ltd, brought an action for annulment of Council Regulation (EC) No 893/2008 of 10 September 2008 maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People’s Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2008 L 247, p. 1; ‘the contested regulation’), in so far as it concerns the applicants.
2 By document lodged at the Court Registry on 1 April 2009, the European Commission sought leave to intervene in support of the form of order sought by the Council of the European Union and, by order of 3 June 2009, the President of the First Chamber of the Court granted the Commission leave to intervene. By letter lodged at the Court Registry on 17 June 2009, the Commission stated that it would not file a statement in intervention.
3 By document lodged at the Court Registry on 20 April 2009, the Gesamtverband der Deutschen Textil und Modeindustrie eV (‘the Gesamtverband’), Lück GmbH & Co KG (‘Lück’), Sandler AG (‘Sandler’), FAN Frankenstolz, H. Neumeyer GmbH & Co KG (‘Frankenstolz’) and Cetex-Rheinfaser GmbH (‘Cetex-Rheinfaser’) sought leave to intervene in support of the form of order sought by the applicants. By document lodged at the Court Registry on 15 May 2009, that application was put in order and Frankenstolz stated, at that time, that it withdrew its application for leave to intervene. The application for leave to intervene of the Gesamtverband, Lück, Sandler and Cetex-Rheinfaser (‘the application for leave to intervene’) was served on the parties in accordance with the first subparagraph of Article 116(1) of the Rules of Procedure of the General Court of 2 May 1991, together with the withdrawal of Frankenstolz’s application for leave to intervene. Within the period allowed to them for that purpose, the Council raised objections to the application for leave to intervene, and the applicants for their part stated that they did not oppose that application. As regards the withdrawal of Frankenstolz’s application for leave to intervene, neither the applicants nor the Council made any observations in this connection.
4 By order of 14 December 2010, the President of the Eighth Chamber of the Court rejected the application for leave to intervene of the Gesamtverband, Lück, Sandler and Cetex-Rheinfaser. Frankenstolz was removed from the case as an applicant for leave to intervene.
5 The Gesamtverband, Lück and Sandler having brought, on 3 January 2011, an appeal before the Court of Justice, registered as Case C‑3/11 P(I), against that order, the case giving rise to the action was stayed, by order of 28 December 2011 of the President of the Eighth Chamber of the General Court, pending a final decision in Case C‑3/11 P(I).
6 By order of the President of the Court of Justice of 17 October 2011, the appeal was dismissed.
7 By judgment of 13 September 2013 in Cixi Jiangnan Chemical Fiber and Others v Council (T‑537/08, EU:T:2013:428), the Court dismissed the action and ordered the applicants to bear their own costs and to pay, jointly and severally, the costs incurred by the Council.
8 The Council sent the applicants’ representatives several requests seeking payment of the costs incurred by it and which it assessed at EUR 20 345.12. The applicants have not made any payments in response to those requests.
9 By document lodged at the Court Registry on 20 July 2015, the Council made an application for taxation of costs, under Article 170(1) of the Rules of Procedure, by which it requested the Court to fix the recoverable costs to be reimbursed by the applicants at EUR 20 345.12, together with default interest at the rate of 3.75% as from 5 April 2014.
10 The applicants stated that they would not submit observations on that application.
Law
11 The Council submits that the two pleas in law raised by the applicants in their application, namely the infringement of the principle of non-discrimination and the alleged inconsistencies and contradictions in the European Community interest assessment, raised significant issues from the point of view of EU law. According to the Council, the action created, for the lawyers representing it, a workload corresponding to an amount of fees assessed at EUR 20 200.32. By way of disbursements relating to proceedings in the case, the Council claims EUR 124.10 for travel expenses, EUR 11.55 for photocopying costs and EUR 9.15 for postage costs, corresponding to a total amount of EUR 20 345.12 with the amount of the fees.
12 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 purposes of the proceedings before the Court and, second, to those that were necessary for that purpose (see order of 28 June 2004 in Airtours v Commission, T‑342/99 DEP, ECR, EU:T:2004:192, paragraph 13 and the case-law cited).
13 It is settled case-law that the European Union judicature is not empowered to tax the fees payable by the parties to their own lawyers but it may determine the amount of those fees which may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the 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 in Airtours v Commission, cited in paragraph 12 above, EU:T:2004:192, paragraph 17 and the case-law cited).
14 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 in Airtours v Commission, cited in paragraph 12 above, EU:T:2004:192, paragraph 18 and the case-law cited).
15 The amount of the recoverable costs in the present case must therefore be assessed in the light of those criteria.
16 Regarding the fees relating to the main proceedings and, in that regard, in respect of the assessment of the amount of work generated by the case, the European Union judicature must take into account the work that is objectively necessary for the whole of the judicial proceedings (order in Airtours v Commission, cited in paragraph 12 above, EU:T:2004:192, paragraph 30 and the case-law cited).
17 The Council states that an amount of EUR 20 200.32 is sought in respect of the fees paid to the Council’s external lawyers. It has submitted for inclusion in the case-file documents which show that those fees correspond to 76.2 working hours charged.
18 The Council notes that the lawfulness of the contested regulation was also disputed in another case, namely Case T‑536/08 which gave rise to the judgment of 13 September 2013 in Huvis v Council (T‑536/08, EU:T:2013:432). The partial overlap of the legal issues raised in that case and the case giving rise to the action was taken into account in the calculation of the fees and other costs charged by the Council’s lawyers. With respect to the fees charged by those lawyers in relation to the hearing, only 11.8 hours were attributed to the case giving rise to the action, while the same number of hours was attributed to Case T‑536/08; similarly, the travel and accommodation expenses were split between the two cases.
19 It must be held that the amount of EUR 20 200.32, corresponding to an average hourly rate of approximately EUR 265, in view of the hours charged, proves to be justified and the amount of work generated by the case giving rise to the action, as claimed by the Council, is not excessive.
20 It should be observed that the Council found it necessary to express doubts as to the admissibility of the action, which was ultimately held to be admissible for only three of the applicants, namely those which could be identified in the measures of the Council and the Commission pertaining to the anti-dumping duties in question and which were concerned by the preliminary investigations (judgment in Cixi Jiangnan Chemical Fiber and Others v Council, cited in paragraph 7 above, EU:T:2013:428, paragraph 26).
21 The Council also raised pleas of inadmissibility, owing to the fact that the applicants had sought, in their action, the annulment of the contested regulation with retroactive effect from two different dates and since the applicants had also sought, in their action, the annulment of the contested regulation in its entirety. Following the clarifications provided by the applicants at the hearing regarding the subject-matter of their request, it was held that there was no need to rule on the pleas of inadmissibility raised by the Council (judgment in Cixi Jiangnan Chemical Fiber and Others v Council, cited in paragraph 7 above, EU:T:2013:428, paragraph 33).
22 The Council was prompted to respond to two pleas raised by the applicants, concerning, first, infringement of the principle of non-discrimination and, secondly, alleged inconsistencies and contradictions in the Community interest assessment.
23 The case giving rise to the action therefore presented a degree of complexity from a procedural and legal point of view, without, however, having any unusual significance from the point of view of EU law.
24 Regarding the disbursements relating to the procedure in the case giving rise to the action, nor is the amount claimed by the Council unreasonable given that that case entailed an exchange of pleadings and participation in the hearing which was held on 15 April 2013. The Council claims EUR 124.10 for travel expenses, EUR 11.55 for photocopying costs and EUR 9.15 for postage costs.
25 In the light of all the foregoing considerations, the recoverable costs will be fairly assessed by fixing their total amount at EUR 20 345.12.
26 The Council claims that the amount in respect of the costs should be accompanied by default interest.
27 In that regard, it should be noted that the finding of any obligation to pay default interest and the fixing of the applicable rate fall within the jurisdiction of the Court under Article 170(1) of the Rules of Procedure (see, by analogy, order of 29 September 1995 in ENU v Commission, C‑2/94 SA, EU:C:1995:301, paragraph 10).
28 According to settled case-law, an application made in the course of proceedings for taxation of costs to add default interest 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, to that effect, order of 24 October 2011 in Marcuccio v Commission, T‑176/04 DEP II, EU:T:2011:616, paragraph 38 and the case-law cited).
29 With regard to the rate of interest applicable, 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 rate applicable is to be calculated on the basis of the rate applied by the ECB to its principal refinancing operations and in force on the first calendar day of the month in which the deadline for payment falls, increased by three and a half percentage points.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The total amount of costs to be reimbursed to the Council of the European Union by Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, NingBo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd and Zhejiang Anshun Pettechs Fibre Co. Ltd is fixed at EUR 20 345.12.
2. That sum is to bear interest for late payment from the date of service of this order until the date of payment.
Luxembourg, 25 November 2015.