Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Third Chamber)

10 March 2020 (*)

(Procedure — Taxation of costs — Recoverable costs)

In Case T‑139/14 DEP,

PT Wilmar Bioenergi Indonesia, established in Medan (Indonesia),

PT Wilmar Nabati Indonesia, established in Medan,

represented by P. Vander Schueren, D. Geraets and N. Mizulin, lawyers,

applicants,

v

Council of the European Union, represented by H. Marcos Fraile, acting as Agent,

defendant,

supported by

European Biodiesel Board (EBB), established in Brussels (Belgium),

and by

European Commission,

interveners,

APPLICATION for taxation of costs further to the judgment of 15 September 2016, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (T‑139/14, not published, EU:T:2016:499).

THE GENERAL COURT (Third Chamber),

composed of A.M. Collins, President, Z. Csehi (Rapporteur) and G. De Baere, 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 February 2014, the applicants, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia, brought an action seeking the annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2; ‘the contested measure’) in so far as it imposed an anti-dumping duty on them.

2        By orders of the President of the Ninth Chamber of the General Court of 17 July 2014 and 22 September 2014, the European Commission and the European Biodiesel Board (EBB) were granted leave to intervene in the proceedings in support of the Council of the European Union.

3        By judgment of 15 September 2016, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (T‑139/14, not published, EU:T:2016:499), the General Court annulled the contested measure in so far as it concerned the applicants. It ordered the Council to bear its own costs and to pay those incurred by the applicants.

4        By appeal lodged on 24 November 2016, the Council sought to have set aside, under Article 56 of the Statute of the Court of Justice of the European Union, the judgment of the General Court of 15 September 2016, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (T‑139/14, not published, EU:T:2016:499).

5        By letter dated 22 January 2018, the Council informed the Court of Justice, in accordance with Article 148 of the Court’s Rules of Procedure, that it was discontinuing its appeal.

6        By order of 16 February 2018, Council v PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia (C‑603/16 P, not published, EU:C:2018:153), the President of the Court removed Case C‑603/16 P from the Court register and ordered the Council to pay the costs incurred by the applicants.

7        By letter dated 25 May 2018, the applicants requested that the Council reimburse the total sum of [confidential] in respect of both sets of proceedings, those before the General Court and those before the Court of Justice. As regards only the proceedings before the General Court, the applicants claim the total sum of [confidential], consisting of [confidential] in lawyers’ fees and [confidential] in disbursements.

8        By letter dated 25 July 2018, the Council stated that it disagreed with the amount of costs claimed by the applicants and offered to reimburse a total sum of EUR 25 130 in respect of both sets of proceedings, including, inter alia, 110 hours’ work at an hourly rate of EUR 225. The applicants rejected that offer by letter dated 2 November 2018 and once again claimed the amount initially sought.

9        By letter dated 10 January 2019, the Council reiterated that it disagreed with the amount claimed by the applicants and offered to reimburse a total amount of EUR 37 930 in respect of both sets of proceedings.

10      Given that the applicants and the Council failed to reach agreement on the amount of recoverable costs, by document lodged at the General Court Registry on 8 May 2019 the applicants lodged an application for taxation of costs pursuant to Article 170(1) of the Rules of Procedure of the General Court claiming that the Court should:

–        set at [confidential] the amount of costs payable by the Council in respect of the proceedings relating to Case T‑139/14;

–        set at [confidential] the amount of costs payable by the Council in respect of these taxation of costs proceedings;

–        apply default interest to those amounts.

11      In its observations lodged at the General Court Registry on 6 June 2019, the Council claims that the General Court should:

–        reject the applicants’ claim; and

–        set at EUR 29 374.77 the total amount of recoverable costs in respect of the proceedings relating to Case T‑139/14 and these taxation of costs proceedings.

12      Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case has therefore been assigned, in accordance with Article 27(5) of the Rules of Procedure.

 Law

13      Under Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court, at the request of the party concerned, is to give its decision by way of an order from which no appeal may lie, after giving the party concerned by the application an opportunity to submit its observations.

14      Under Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings, in particular 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 General Court and, second, to those which were necessary for that purpose (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 13 and the case-law cited).

15      The amount of recoverable costs in the present case must be determined in accordance with those criteria.

 Amount of recoverable lawyers’ fees

16      According to settled case-law, the Court 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 of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).

17      Furthermore, 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 purpose and nature of the proceedings, their significance from the point of view of EU law, as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18 and the case-law cited).

18      In the first place, as regards the purpose and nature of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, the General Court notes that, as to the substance, the case in the main proceedings concerned an action for annulment relating to anti-dumping which was based on 11 pleas in law. The first and sixth pleas in law essentially related to the rejection of the prices of crude palm oil included in the applicants’ accounting records. The second, third and fifth pleas in law related, in essence, to the replacement of the real costs of crude palm oil with the export reference price communicated by the Indonesian authorities and based on published international prices. The fourth plea alleged infringement of Article 2(3) and (5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51; ‘the Basic Regulation’). The seventh plea in law alleged infringement of Article 2(10) of the Basic Regulation. The eighth plea in law alleged a manifest error of assessment relating to the use of incorrect raw materials. The ninth plea in law alleged a manifest error of assessment made in the adjustment of the costs of crude palm oil purchased from related companies. The 10th plea in law concerned the determination of the applicants’ profit margin and the 11th concerned the profit margin used for related trading companies established in the European Union.

19      It should be noted that the sixth plea raised an important issue from the point of view of EU law, involving a degree of factual and legal complexity and requiring detailed analysis. That plea concerned the application of Article 2(5) of the Basic Regulation, which sets out, in essence, various possibilities on the basis of which the institutions may take into account the costs associated, in particular, with the production and sale of a product under investigation for the purpose of calculating the normal value of the like product within the meaning of that regulation. In the present case, the applicants claimed that the Council had, in essence, infringed Article 2(5) of the Basic Regulation by disregarding, when calculating the normal value of the like product, the prices of palm oil included in the applicants’ accounting records. They contended, in particular, that the Council misapplied the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65). It follows that that plea required detailed analysis, as the issue it raised led the General Court to rule, in particular, on the burden of proof and the discretion that the EU institutions have when calculating the normal value of the like product (see, to that effect and by analogy, order of 4 December 2019, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council, C‑603/16 P‑DEP, not published, EU:C:2019:1040, paragraphs 24 to 26).

20      It should be observed that the other pleas were not particularly complex.

21      In the second place, as regards the financial interests that the parties had in the proceedings, it must be borne in mind that the contested measure imposed definitive anti-dumping duties amounting to 20% or EUR 174.91 per tonne net on the applicants’ exports. Consequently, as contended by the Council, while the applicants had a financial interest in the case, that interest cannot be regarded as unusual or significantly different from those at issue in any investigation procedure imposing anti-dumping duties.

22      In the third place, as regards the amount of work generated by the case, the applicants have requested that the Court set the amount of recoverable costs by way of lawyers’ fees for the proceedings before the General Court at [confidential], corresponding to [confidential] hours’ work by four lawyers and a weighted average hourly rate of [confidential].

23      The Council disputes the number of lawyers, the number of hours and the hourly rate applied.  It claims that 115 hours worked by a single lawyer at an hourly rate of EUR 250 would have been sufficient for the entire proceedings before the General Court.

24      In the present case, in support of their request for repayment of the lawyers’ fees incurred in the main proceedings before the General Court, the applicants provide five invoices containing detailed information on the type of work, the number of hours devoted to each type of work and the corresponding hourly rates:

–        invoice of 31 March 2014, covering the period from 17 to 28 February 2014, for an amount of [confidential] in fees;

–        invoice of 29 August 2014, covering the period from 3 March to 30 July 2014, for an amount of [confidential] in fees;

–        invoice of 18 September 2014, covering the period from 5 to 13 August 2014, for an amount of [confidential] in fees;

–        invoice of 17 December 2014, covering the period from 19 September to 29 November 2014, for an amount of [confidential] in fees;

–        invoice of 17 May 2018, covering the period from 12 December 2014 to 15 September 2016, for an amount of [confidential] in fees.

25      First, the hours that cannot be included in the category of recoverable costs within the meaning of the case-law referred to in paragraph 14 above should be disregarded. Those hours include the hours charged by a partner on 17 May 2018 that correspond to the time spent attending the hearing on 28 October 2015 in the related cases involving anti-dumping duties for imports of biodiesel originating in Argentina, which gave rise to the judgments of 15 September 2016, LDC Argentina v Council (T‑118/14, not published, EU:T:2016:502); of 15 September 2016, Cargill v Council (T‑117/14, not published, EU:T:2016:503); of 15 September 2016, Unitec Bio v Council (T‑111/14, EU:T:2016:505); and of 15 September 2016, Molinos Río de la Plata and Others v Council (T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509); and the hearings on 14 and 20 April 2016 in the related cases involving anti-dumping duties for imports of biodiesel originating in Indonesia, which gave rise to the judgments of 15 September 2016, PT Pelita Agung Agrindustri v Council (T‑121/14, not published, EU:T:2016:500), and of 15 September 2016, PT Musim Mas v Council (T‑80/14, not published, EU:T:2016:504). The time spent drafting reports or legal advice for the applicants in connection with those related cases should also be disregarded. Those hours cannot be regarded as necessary for the main proceedings before the General Court as they related to other cases.

26      Second, it is apparent from case-law that, even though as a rule substantial legal work is carried out in the course of the phase preceding judicial proceedings, by ‘proceedings’, Article 140(b) of the Rules of Procedure refers only to proceedings before the General Court, to the exclusion of any prior phase. That follows, in particular, from Article 139 of the Rules of Procedure, which refers to ‘proceedings before the General Court’ (order of 24 January 2002, Groupe Origny v Commission, T‑38/95 DEP, EU:T:2002:13, paragraph 29). The costs relating to periods during which no procedural steps were taken by the Court cannot be recovered, as such costs cannot be regarded as directly connected to the steps taken by the lawyer before the Court (order of 21 December 2010, Le Levant 015 and Others v Commission, T‑34/02 DEP, EU:T:2010:559, paragraphs 33 and 34). The costs relating to the period after the oral procedure, when no procedural steps were taken after the hearing, cannot be recovered either (order of 24 January 2002, Groupe Origny v Commission, T‑38/95 DEP, EU:T:2002:13, paragraph 31).

27      Consequently, it is not appropriate to take into account the hours spent reviewing and transmitting to the applicants the judgment of the General Court in the case in the main proceedings and drafting legal advice relating to that judgment (see, to that effect and by analogy, order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P DEP, not published, EU:C:2019:298, paragraph 33).

28      Third, according to case-law, where a party’s lawyers have already assisted that party during proceedings or procedures prior to the relevant action, as in the present case, it is necessary to have regard to the fact that those lawyers are aware of matters relevant to the action, which is likely to have facilitated their work and reduced the preparation time required for the judicial proceedings (order of 21 December 2010, Le Levant 015 and Others v Commission, T‑34/02 DEP, EU:T:2010:559, paragraph 43).

29      Fourth, the primary consideration of the Court is the total number of hours’ work that appears to have been 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 (order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 30).

30      In the present case, even though the application for annulment consisted of 11 pleas, some of those pleas overlapped so that the General Court grouped them, in essence, in eight pleas, as is apparent from paragraph 18 above. The drafting of a 26-page application for annulment which raises one plea involving a complex, novel legal and factual issue and, in essence, seven other less complex pleas cannot justify more than [confidential] hours’ work. [confidential] hours appear to have been objectively necessary for an 18-page reply.

31      In this case, several very short requests for confidential treatment and the preparation of the non-confidential versions of the application, the defence, the reply and their annexes cannot justify more than [confidential] hours’ work for an inexperienced lawyer, given the low level of complexity of that work.

32      The responses to the statements in intervention lodged by the Commission and the EBB each have eight pages. In the light of the foregoing, the Court considers that this corresponds to [confidential] hours’ work.

33      In this case, the 13-page response to the General Court’s measures of organisation of procedure objectively justified [confidential] hours’ work.

34      The necessary communication with the client regarding the preparation of the various written submissions before the General Court objectively justified [confidential] hours.

35      According to the invoices submitted, two partners charged [confidential] hours to prepare for and attend the hearing. As the partners are particularly experienced professionals, who are capable of working very efficiently and speedily, they should objectively require only [confidential] hours to prepare for that hearing and represent their clients at that hearing.

36      In the light of the foregoing considerations, the General Court sets the total amount of working time objectively required by the applicants’ lawyers to represent the applicants during the judicial stage at [confidential] hours.

37      The weighted average hourly rate of [confidential], referred to in the application, appears to be excessive. The hourly rate to be used in the present case cannot exceed [confidential], which can be regarded as an appropriate hourly rate for remunerating the services of a particularly experienced professional who is capable of working efficiently and speedily.

38      In those circumstances, [confidential] represents a fair assessment of the fees recoverable by the applicants.

 The recoverable disbursements

39      The applicants claim a total amount of [confidential] by way of administrative costs and meal, travel expenses and accommodation expenses in connection with the case.

40      The Council contends that some of those costs are not necessary for the proceedings before the General Court. In that regard, it therefore offers to reimburse EUR 80.

41      In the present case, it is apparent from the invoices referred to above that, in respect of the entire proceedings before the General Court, [confidential] was charged for the reproduction of documents and [confidential] was charged for mail and courier services.

42      The amount of administrative costs in respect of which reimbursement is sought appears to significantly exceed what is necessary. It must be borne in mind that in particular photocopies other than those specifically required by the Court, communication costs between two lawyers representing the same party, case-law analysis and reading articles cannot be justified as expenses necessarily incurred (order of 20 November 2012, Al Shanfari v Council and Commission, T‑121/09 DEP, not published, EU:T:2012:607, paragraph 43).

43      Accordingly, an amount of [confidential] represents a fair assessment of the costs incurred for the reproduction of documents and for mail and courier services in connection with the proceedings before the General Court.

44      The ‘sundry costs’ and meal and travel expenses that are not related to the lawyers’ representation of the applicants at the hearing must be excluded from the costs necessary for the proceedings before the General Court.

45      As regards the travel and subsistence expenses relating to the hearing, it is apparent from the invoice of 17 May 2018 sent to the applicants that they were charged [confidential] by way of hotel expenses and [confidential] by way of travel expenses. Two lawyers were present at the hearing.

46      In that regard, the Council contends that only the disbursements of a single lawyer, or an amount of EUR 244.74, were objectively necessary.

47      The General Court takes the view that, in the present case, the expenses incurred for the participation of two legal advisers at the hearing can be regarded as expenses necessarily incurred within the meaning of Article 140(b) of the Rules of Procedure.

48      An amount of [confidential] thus represents a fair assessment of the travel and subsistence expenses incurred by two lawyers to represent the applicants at the hearing in the present case.

49      It follows from the foregoing that the General Court sets the total amount of recoverable disbursements in respect of the main proceedings at [confidential].

 The costs of the present proceedings

50      In fixing the amount of recoverable costs, the General Court is required to take account of all the circumstances of the case up to the making of the order on 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).

51      As regards the sum of [confidential] claimed for the present taxation of costs proceedings, it does not appear to be excessive.

52      In those circumstances, the applicants’ costs relating to these taxation of costs proceedings are to be taxed at [confidential].

 Claim for default interest

53      The applicants claim that default interest should be added to the recoverable costs allowed.

54      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 are matters which fall within the jurisdiction of the Court under 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). According to settled case-law, a claim made in taxation of costs proceedings for default interest to be added to the amount allowed must be granted for the period between the date on which the taxation of costs order is served and the date on which the costs are actually recovered (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).

55      As regards the interest rate 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 interest rate applicable is to be calculated on the basis of the rate applied by the European Central Bank (ECB) to its principal refinancing operations as published in the Official Journal of the European Union, C series, 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 19 July 2017, Yanukovych v Council, T‑348/14 DEP, not published, EU:T:2017:549, paragraph 66 and the case-law cited).

56      Consequently, the Court finds that the amount of recoverable costs is to bear default interest, as of the date on which this order is served, at a rate calculated on the basis of the rate set by the ECB for its principal refinancing operations applicable during the period concerned, increased by three and a half percentage points.

57      It follows from all of the foregoing that the total amount of costs that may be recovered by the applicants from the Council is [confidential], plus default interest as of the date on which this order is served.

On those grounds,

THE GENERAL COURT (Third Chamber),

hereby orders:

1.      The total amount of the costs to be reimbursed by the Council of the European Union to PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia is set at [confidential].

2.      That amount shall bear default interest as of the date on which this order is served until the date on which payment is made.

Luxembourg, 10 March 2020.

*      Language of the case: English.

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