ORDER OF THE GENERAL COURT (Third Chamber)
21 October 2014 (*)
(Procedure — Taxation of costs — Lawyers’ fees — Representation of an institution by a lawyer — Recoverable costs)
In Case T‑410/06 DEP,
Foshan City Nanhai Golden Step Industrial Co. Ltd, established in Lishui (China),
applicant,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, assisted by D. Geradin and A. Polcyn, lawyers,
defendant,
supported by
European Commission,
and by
Confédération européenne de l’industrie de la chaussure (CEC),
interveners,
APPLICATION for taxation of the costs to be recovered from Foshan City Nanhai Golden Step Industrial Co. Ltd by the Council of the European Union following the judgment of 4 March 2010 in Foshan City Nanhai Golden Step Industrial v Council (T‑410/06, ECR, EU:T:2010:70),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas (Rapporteur), President, N.J. Forwood and E. Bieliūnas, 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 2006, the applicant — Foshan City Nanhai Golden Step Industrial Co. Ltd (‘Foshan’), a footwear manufacturer established in China — brought an action for partial annulment of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1; ‘the contested regulation’).
2 By judgment of 4 March 2010 in Foshan City Nanhai Golden Step Industrial v Council (T‑410/06, ECR, EU:T:2010:70), the General Court dismissed the action and ordered Foshan to bear its own costs and to pay those incurred by the Council of the European Union.
3 By letter of 21 June 2010, the Council called upon Foshan to pay it the sum of EUR 48 254.20 as reimbursement for: (i) the fees billed by the Council’s external lawyers in the amount of EUR 48 190, which included the sum of EUR 638.85 for travel to Luxembourg and accommodation there; and (ii) postage and photocopying costs in the amount of EUR 45.10 and EUR 19.10, respectively. Enclosed with that letter was an account according to which the costs of the proceedings corresponded to 204 hours’ work, divided among three lawyers.
4 By letter of 9 July 2010, Foshan expressed its disagreement with the amount claimed by the Council. The Council thereupon sent Foshan letters on 2 September 2010, 14 January 2011 and 18 December 2012, respectively, calling for the payment, as soon as possible, of the amount initially claimed, together with interest for late payment, failing which it planned to bring the matter before the Court.
5 As the parties did not reach any agreement as to the recoverable costs, the Council — by document lodged with the Court Registry on 20 December 2013 and acting pursuant to Article 92(1) of the Rules of Procedure of the General Court — made the present application for taxation of costs, claiming that the Court should: (i) fix the total amount of recoverable costs at EUR 48 254.20; (ii) apply default interest to that amount, with effect from 24 July 2010 until the date of actual payment, calculated on the basis of the rate, fixed by the European Central Bank (ECB) for its principal refinancing operations, in force on the first calendar day of the month in which the deadline for payment fell, increased by three and a half percentage points; and (iii) fix the amount of the costs incurred for the purposes of the present proceedings at EUR 1 601.50.
6 Foshan did not lodge observations within the prescribed period.
Law
7 In support of its application, the Council submits that, on the one hand, the fees of the external lawyers to whom it had recourse and, on the other, the amounts billed for travel and subsistence costs and other disbursements were costs necessarily incurred for the purposes of the proceedings before the Court and that, in consequence, they are fully recoverable.
8 Under Article 92(1) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court, on application by the party concerned and after hearing the opposite party, is to make an order from which no appeal lies.
9 Under Article 91(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 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).
10 It is settled case-law that the Courts of the European Union do not have jurisdiction to tax the fees payable by the parties to their own lawyers, but they 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 the order in Airtours v Commission, paragraph 9 above, EU:T:2004:192, paragraph 17 and the case-law cited).
11 It is also settled case-law that, in the absence of provisions of EU law laying down fee scales, the General 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, paragraph 9 above, EU:T:2004:192, paragraph 18, and the case-law cited).
12 In order to determine, on the basis of the criteria set out in paragraph 11 above, whether the costs actually incurred were necessary for the purposes of the proceedings, precise details must be provided 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 none the less places it in a situation where its assessment of the applicant’s claims must necessarily be strict (see the order of 23 May 2014 in Marcuccio v Commission, T‑286/11 P-DEP, EU:T:2014:312, paragraph 13 and the case-law cited).
13 It is on the basis of those criteria that the Court must determine the amount of the costs recoverable in the present case.
14 In support of its application, the Council submits that, as it had stated in its letter of 2 September 2010, Foshan had relied on four pleas in support of its action, most of which involved complex factual and legal issues, as is reflected in the voluminous pleadings and annexes lodged by the parties and the considerable length of time spent at the hearing. The Council submits also that, even though the legality of the contested regulation was at issue in five other actions for annulment connected to the main action and even though the Council had been represented by the same lawyers, the overlap between those cases was only partial. The Council states, furthermore, that, to the extent of that overlap, its representatives were able to devote less time to each single case, but that this had already been taken into account in the related statement of fees.
15 First, as regards 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 the dispute concerned the annulment of the contested regulation, in that an incorrect method had allegedly been used to determine the selling, general and administrative costs and a reasonable profit margin, within the context of the calculation of the constructed normal value for the purposes of Article 2(3) and (6)(c) 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; ‘the basic regulation’); and in that the contested regulation had imposed a definitive anti-dumping duty on Foshan. In the context of that dispute, certain aspects of the calculation of the injury caused by the dumped exports were also challenged.
16 In support of its action, Foshan had raised four pleas, alleging respectively: (i) infringement of Article 2(6)(c) of the basic regulation and of Foshan’s rights of defence as regards the calculation of its dumping margin; (ii) infringement of Article 3 of the basic regulation and failure to state adequate reasons; (iii) infringement of Foshan’s rights of defence and failure to state adequate reasons as regards the type of definitive duties applied; and, lastly, (iv) error of law and a manifest error of assessment as regards the injury suffered by the Community industry. However, it must be held that, notwithstanding the complex factual context and the relatively technical legal framework of the dispute, none of the pleas relied on by Foshan raised complicated or novel legal issues. Furthermore, most of the pleas relied on were identical to or overlapped with those raised in the case giving rise to the judgment of 4 March 2010 in Sun Sang Kong Yuen Shoes Factory v Council (T‑409/06, ECR, EU:T:2010:69) and calling in question the legality of the same regulation, and in relation to which the Council has also applied for taxation of costs.
17 In those circumstances, it must be held that, in the light of the subject-matter and nature of the dispute, the difficulties presented by the case were not very great, and it did not have particular significance from the point of view of EU law as a whole.
18 Second, as regards the parties’ financial interest in the proceedings, it must be noted that the contested regulation established a definitive anti-dumping duty at a rate of 9.7% applicable to the net free-at-frontier price, before customs clearance, on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Foshan. While the case certainly 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 investigation proceedings establishing definitive anti-dumping duties.
19 Third, as regards the amount of work generated by the case in the context of the main proceedings, the Council regards the number of hours worked by its lawyers as reasonable. In that connection, the Council specifies that the 204 hours in respect of which reimbursement is requested correspond to 151.1 hours spent drafting various documents and 52.9 hours spent preparing for and appearing at the hearing.
20 It can be seen from the statements of fees produced by the Council in an annex to its application that the 151.1 hours billed by its external lawyers were accounted for, in essence, by the following: analysis of the application; correspondence with the Commission Directorate General for Trade (‘DG Trade’) and the Council legal service; drafting of the 24-page defence; drafting of the observations on the application to intervene lodged by the Confédération européenne de l’industrie de la chaussure; analysis of the reply; and the drafting the 20-page rejoinder.
21 Additionally, the 52.9 hours billed in respect of the oral stage of the proceedings were accounted for by the following: correspondence with the Court Registry and the exchange of emails and discussions with DG Trade in preparation for the hearing on 20 February 2009; the reading and checking of the Report for the Hearing; the preparation of pleadings and files for the hearing; the drafting of answers in relation to the measures of organisation of the procedure adopted by the Court; and, lastly, appearance at the hearing before the Court.
22 The completion of those tasks involved the work of an associate (64.5 hours in total) at an hourly rate of between EUR 385 and EUR 401 and the work of two assistants (108 hours and 31.5 hours respectively) at an hourly rate of between EUR 145 and EUR 166. The weighted average rate for the total number of hours (204 hours), divided among the three lawyers, was EUR 233.
23 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, EU:T:2009:466, paragraphs 42 and 43 and the case-law cited).
24 In the present case, even if account is taken of the fact that the case presented a certain level of factual and technical difficulty, it must be held that the number of hours of work claimed by the Council appears to be excessive.
25 Furthermore, the Court finds that the hourly rate of between EUR 385 and EUR 401 claimed for the services provided by the associate greatly exceeds what may be considered appropriate remuneration for the services of a particularly experienced professional, capable of working very efficiently and quickly (see, to that effect, the order of 8 April 2014 in Laboratoires CTRS v Commission, T‑12/12 DEP, EU:T:2014:231, paragraph 51). Moreover, the taking into account of such a high level of remuneration is counterbalanced by a necessarily strict evaluation of the total number of hours of work necessary for the purposes of the proceedings (see the order of 17 October 2008, Infront WM v Commission, T‑33/01 DEP, EU:T:2008:449, paragraph 31 and the case-law cited).
26 In that respect, it must be observed that — as is mentioned in paragraph 16 above — as the associate in question had represented the Council in the case that led to the judgment in Sun Sang Kong Yuen Shoes Factory v Council (paragraph 16 above, EU:T:2010:69), he could not have failed to acquire an in-depth knowledge of the issues raised and the background to the case, which must have reduced his workload.
27 Moreover, dividing the work of preparing the pleadings among three lawyers necessarily involves a certain duplication of effort (order of 8 October 2008 in CDA Datenträger Albrechts v Commission, T‑324/00 DEP, EU:T:2008:413, paragraph 91), with the result that the Court cannot allow the total number of hours of work claimed.
28 Lastly, since the preparation of files and the printing of documents for the hearing are clerical tasks, they cannot be billed at the hourly rate for a lawyer’s fees. In any event, setting the time needed to accomplish that work at more than four hours is excessive.
29 In the light of the foregoing considerations, the Court fixes the total amount of working time objectively needed by the Council’s lawyers for the purposes of representing the Council during the judicial stage at 70 hours.
30 Accordingly, the fees recoverable by the Council can be assessed on an equitable basis at EUR 14 000.
31 As regards the disbursements of EUR 638.85, the Court finds that the amount claimed in respect of travel and subsistence costs incurred for the hearing on 20 February 2009, which lasted for one morning and required the presence of an agent of the Council and a single external lawyer (associate), is excessive. Furthermore, the Council has not produced any documentary evidence of that amount, other than the bill that it received from the external lawyers. In those circumstances, it is appropriate to fix the amount of those costs at EUR 450.
32 As regards the costs for postage and photocopying, assessed at EUR 64.20, the Court finds that all those costs must be allowed as recoverable costs since the amount does not appear to be excessive in view of the number of pages and the copies concerned.
33 With respect to the Council’s claim that the Court should order Foshan to pay default interest in addition to the amount claimed by way of costs in the case that gave rise to the judgment in Foshan City Nanhai Golden Step Industrial v Council, paragraph 2 above (ECR, EU:T:2010:70), 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 within the Court’s jurisdiction pursuant to Article 92(1) of the Rules of Procedure (see the order in Marcuccio v Commission, EU:T:2014:312, paragraph 12 above, paragraph 25 and the case-law cited).
34 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 notification of the order of taxation of costs and the date of actual recovery of the costs (see the order in Marcuccio v Commission, paragraph 12 above, EU:T:2014:312, paragraph 26 and the case-law cited).
35 As regards the applicable interest rate, the Court considers it appropriate to take account of the provision made under 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 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.
36 In those circumstances, the Council’s application must be allowed to the extent that it concerns the application of default interest to the recoverable costs. However, that interest will be due from the date on which the present order is signed, and will run until the date of effective recovery of those costs (see, to that effect, the order of 24 October 2011, Marcuccio v Commission, T‑176/04 DEP II, EU:T:2011:616, paragraph 38 and the case-law cited).
37 In the light of all the foregoing considerations, the total costs recoverable by the Council can be assessed on an equitable basis at EUR 14 514.20, an amount that takes account of all the circumstances of the case up to the date on which the present order is made.
38 It follows that it is not necessary to give a separate ruling on the costs incurred by the parties for the purposes of these proceedings for taxation of costs (see the order of 13 December 2013, Marcuccio v Commission, T‑256/10 P-DEP, EU:T:2013:685, paragraph 66 and the case-law cited).
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The total amount of costs to be reimbursed by Foshan City Nanhai Golden Step Industrial Co. Ltd to the Council of the European Union is fixed at EUR 14 514.20.
2. Late payment interest shall be due on that amount from the date of notification of the present order until the date of actual recovery.
Luxembourg, 21 October 2014.