Unitec Bio v Council (Taxation of costs - Recoverable costs - Order) [2020] EUECJ T-111/14DEP

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Unitec Bio SA, established in Buenos Aires (Argentina), represented by J.‑F. Bellis and R. Luff, lawyers,

Molinos Río de la Plata SA, established in Buenos Aires, represented by J.‑F. Bellis and R. Luff, lawyers,

Oleaginosa Moreno Hermanos SACIFI y A, established in Bahia Blanca (Argentina), represented by J.‑F. Bellis and R. Luff, lawyers,

Vicentin SAIC, established in Avellaneda (Argentina), represented by J.‑F. Bellis and R. Luff, lawyers,

Aceitera General Deheza SA, established in General Deheza (Argentina), represented by J.‑F. Bellis and R. Luff, lawyers,

Bunge Argentina SA, established in Buenos Aires, represented by J.‑F. Bellis and R. Luff, lawyers,

Cargill SACI, established in Buenos Aires, represented by J.‑F. Bellis and R. Luff, lawyers,

LDC Argentina SA, established in Buenos Aires, represented by J.‑F. Bellis and R. Luff, lawyers,

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

APPLICATION for taxation of costs further to four 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),

composed of A.M. Collins, President, Z. Csehi (Rapporteur) and G. De Baere, Judges,

1 By eight applications lodged at the Registry of the General Court on 17 February 2014, registered, respectively, as Cases T‑111/14, T‑112/14, T‑113/14, T‑114/14, T‑115/14, T‑116/14, T‑117/14 and T‑118/14, the applicants, Unitec Bio SA, Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos SACIFI y A, Vicentin SAIC, Aceitera General Deheza SA, Bunge Argentina SA, Cargill SACI and LDC Argentina SA, each 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 and 22 September 2014, the European Commission and the European Biodiesel Board (EBB) were granted leave to intervene in the proceedings referred to in paragraph 1 above in support of the Council of the European Union.

3 By four 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), the Court annulled the contested measure in so far as it concerned the applicants. In each of the proceedings, it ordered the Council to bear its own costs and to pay those incurred by the applicants.

4 By four appeals lodged on 24 November 2016 and registered as Cases C‑602/16 P and C‑607/16 P to C‑609/16 P, the Council sought to have set aside, under Article 56 of the Statute of the Court of Justice of the European Union, 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).

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 appeals.

6 By order of 15 February 2018, Council v Unitec Bio and Others (C‑602/16 P and C‑607/16 P to C‑609/16 P, not published, EU:C:2018:150), the President of the Court removed Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P from the Court register and ordered the Council to pay the costs incurred by the applicants.

7 By letter dated 27 April 2018, the applicants requested that the Council reimburse the total sum of EUR 391 249 in respect of (1) the eight sets of proceedings before the General Court referred to in paragraph 1 above and (2) the four sets of proceedings before the Court of Justice referred to in paragraph 4 above.

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 45 300 in respect of the relevant proceedings before the General Court and the Court of Justice. The offer made by the Council corresponded to 200 hours’ work at an hourly rate of EUR 225. The applicants rejected that offer by letter dated 28 September 2018, but reduced the total amount claimed to EUR 388 887 due to an error in calculation.

9 By letter dated 10 January 2019, the Council rejected that new claim and offered to reimburse a total amount of EUR 54 100 in respect of the relevant proceedings before the General Court and the Court of Justice.

10 By letter dated 18 March 2019, the applicants once again reduced the amount of their claim in respect of the relevant proceedings before the General Court and the Court of Justice to EUR 85 150, corresponding to 265 hours’ work at an hourly rate of EUR 320 and administrative costs of EUR 350. By letter dated 29 March 2019, the Council rejected that new claim and reiterated its offer to reimburse a total amount of EUR 54 100.

11 Given that the parties failed to reach agreement on the amount of recoverable costs, by document lodged at the General Court Registry on 28 June 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 the amount of recoverable costs to be reimbursed by the Council at EUR 185 811.50 in respect of the proceedings registered as Cases T‑111/14, T‑112/14 to T‑116/14, T‑117/14 and T‑118/14;

– set the amount of recoverable costs to be reimbursed by the Council at EUR 1 539 in respect of these taxation of costs proceedings;

– apply to the amount of recoverable costs default interest as of the date on which this order is served.

12 In its observations, lodged at the General Court Registry on 25 July 2019, the Council claims that the General Court should:

13 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.

14 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.

15 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).

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

17 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).

18 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).

19 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 cases, the General Court notes that, as to the substance, the main proceedings concerned eight actions for annulment relating to anti-dumping, each of which was based on three identical pleas in law. The first and second pleas in law sought to challenge the Council’s conduct in disregarding the costs of the main raw materials included in the exporting producers’ records examined on account of the distortion of the prices of those raw materials caused by the Differential Export Tax system, and in replacing those costs with the reference price. In their first plea in law, the applicants argued that such an approach did not comply with the first and second subparagraphs of Article 2(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’). In their second plea in law, the applicants claimed that that approach did not comply with the Agreement on Implementation of Article VI of the GATT (OJ 1994 L 336, p. 103). The third plea in law alleged that, in finding that there was a causal link between the imports of biodiesel originating in Argentina, which were the subject of the investigation, and the injury caused to the EU industry, the Council had infringed Article 3(7) of the basic Regulation.

20 It should be noted that, as submitted by the applicants, the first plea in the actions 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 cases, 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 within the meaning of the Basic Regulation, the prices of the raw materials 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 within the meaning of the Basic Regulation (see, to that effect and by analogy, order of 19 December 2019, Unitec Bio and Others v Council, C‑602/16 P-DEP, not published, EU:C:2019:1148, paragraphs 30 to 32).

22 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 between EUR 216.64 and EUR 245.67 per tonne net on the applicants’ exports. As contended by the Council, while the applicants had a financial interest in the cases, that interest cannot be regarded as unusual or significantly different from those at issue in any investigation procedure imposing anti-dumping duties.

23 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 relating to the eight actions before the General Court at EUR 184 837.50, corresponding, according to the applicants, to 543 hours’ work by four lawyers and a weighted average hourly rate slightly above EUR 340.

24 The Council disputes the number of lawyers, the number of hours and the hourly rate applied. It claims that a maximum number of 170 hours’ work by a single lawyer at an hourly rate of EUR 250 would have been sufficient for all eight sets of proceedings before the General Court.

25 In the present cases, in support of their application, the applicants have provided a breakdown of the hours worked by their lawyers (‘timesheets’) containing detailed information on the type of work, the number of hours devoted to each type of work and the corresponding hourly rates. It is apparent from that document that four lawyers worked 540.75 hours in total for a total estimated cost of EUR 184 837.50.

26 First, certain hours that cannot be included in the category of recoverable costs within the meaning of the case-law referred to in paragraph 15 above because they do not appear to be necessary for the purpose of the main proceedings before the General Court should be disregarded.

27 Accordingly, the hours corresponding to the time devoted to the action brought by Cámara Argentina de Biocombustibles (Carbio), which is not a party to the present application for taxation of costs and which was ordered to bear its own costs in the judgment 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), cannot be included in the category of recoverable costs. In particular, the hours devoted to answering the Council’s objections relating to the admissibility of Carbio’s action should be disregarded in this application.

28 In addition, 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).

29 In the present cases, 2.5 hours’ work at an hourly rate of EUR 300 was recorded as corresponding to the time spent travelling from Luxembourg (Luxembourg) following the hearing on 28 October 2015 in the main proceedings and to follow-up work after the hearing. In that regard, it should be noted that the oral part of the procedure was reopened on 22 February 2016. By way of measures of organisation of procedure adopted on 22 February 2016 and 23 March 2016, the Court put questions to the applicants. However, given the amount of time that elapsed between the return journey from the hearing on 28 October 2015 and the adoption of the measures of organisation of procedure, the number of hours of follow-up work in question could not have been devoted to replying to those measures of organisation of procedure as they had not yet been adopted by the Court. Accordingly, the number of hours of follow-up work referred to above cannot be included in the category of costs necessarily incurred because they relate to a period during which no procedural step was taken and cannot therefore be regarded as directly connected to the steps taken by the lawyers before the General Court.

30 Second, 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 cases, 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).

31 In that regard, the applicants argue that a number of issues raised in the defence before the General Court were not addressed during the administrative procedure, particularly those concerning the admissibility of the actions. However, the objections relating to the admissibility of the actions concerned only two of the applicants that are parties to the present application for taxation of costs, that is Cargill, the applicant in Case T‑117/14, and Unitec Bio, the applicant in Case T‑111/14, and those applicants addressed those objections in their replies in two identical and very straightforward paragraphs.

32 Third, the applicants justify the high number of hours by the fact that their lawyers had to work on eight actions. According to the applicants, which refer in that regard to paragraph 35 of the order of 13 May 2019, Giant (China) v Council (T‑425/13 DEP, not published, EU:T:2019:340), the EU Courts considered 190 hours for a single applicant to be reasonable. In the light of that case-law, 543 hours’ work relating to eight actions should not, therefore, be considered excessive. In addition, the main proceedings were more complex than those giving rise to the judgment of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896). The applicants add that, although some issues are similar in the eight cases, other procedural issues such as confidentiality, admissibility and data processing had to be dealt with individually for each applicant.

33 The General Court observes that, while the circumstances of the present case, which involves eight actions, may justify a greater number of hours’ work than that required for the preparation for and follow-up of a single set of proceedings before the General Court, the legal and factual similarities between the cases at issue, which were likely to have led to economies of scale for the lawyers, should be taken into account.

34 In the present cases, consideration should be given to the fact that all the written submissions made on behalf of the eight applicants were, apart from a few differences, identical in essence and that they replied in the same way to the questions put by the Court. In particular, the legal and factual issues relating to the application of Article 2(5) of the Basic Regulation were raised in the same terms and they were therefore addressed with almost identical grounds in the reasoning of 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). Such similarities between those related cases necessarily led to economies of scale (see, to that effect, orders of 27 April 2009, Mülhens v OHIM — Conceria Toska (TOSKA), T‑263/03 DEP, not published, EU:T:2009:118, paragraph 17; of 27 April 2009, Mülhens v OHIM, T‑28/04 DEP, not published, EU:T:2009:119, paragraph 17; and see, also to that effect, order of 12 May 2016, Ningbo Yonghong Fasteners v Council, T‑150/09 DEP, not published, EU:T:2016:317, paragraph 28).

35 Moreover, although the issues of admissibility had to be dealt with in greater depth for certain actions when the application and the reply were drafted, it should be observed, as previously mentioned in paragraph 31 above, that those issues concerned only two of the applicants in the present taxation of costs proceedings and that they were dealt with in the same way in the written submissions made on behalf of those applicants and the General Court therefore addressed them with identical grounds in the reasoning of its judgments of 15 September 2016, Cargill v Council (T‑117/14, not published, EU:T:2016:503), and of 15 September 2016, Unitec Bio v Council (T‑111/14, EU:T:2016:505). The requests for confidential treatment in Cases T‑112/14 to T‑116/14 and T‑118/14 were also identical.

36 Fourth, it must be borne in mind that 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).

37 In the present cases, in the light in particular of the significance of the proceedings from the point of view of EU law and the difficulties associated with one of the pleas raised before it, the General Court sets the total amount of working time objectively required by the lawyers for the purpose of representing the eight applicants in the main proceedings during the judicial stage at 408 hours. That covers the drafting of the applications for annulment, the replies and the very short requests for confidential treatment in Cases T‑112/14 to T‑116/14 and T‑118/14; the preparation of non-confidential versions of the documents in those proceedings; the responses to the two statements in intervention lodged by the Commission and the EBB; the preparation for the hearing, the representation of the applicants at the hearing and the replies, common to all the applicants, to the questions put by the Court after the hearing. It should be noted that, of the total amount of working time referred to above, the preparation of a single typical case, which served as the basic model for the handling of the seven other cases, should be allocated a greater number of hours than those seven other cases.

38 As regards the weighted average hourly rate referred to in the application, which is slightly above EUR 340, the Court takes the view that such an hourly rate can be applied to the hours devoted to preparing and drafting the written submissions and preparing for and attending the hearing in respect of a single typical case which served as the basic model for the handling of the seven other cases. The Court also takes the view that, in the light of the fact that the work relating to the seven other cases was more straightforward and was done on the basis of the preparation for the typical case, the hourly rate to be applied is EUR 220.

39 In those circumstances, EUR 110 160 represents a fair assessment of the fees recoverable by the applicants.

40 The applicants claim EUR 974 in respect of the travel and subsistence expenses related to the single hearing that took place in the main proceedings.

41 In the present cases, in support of their claim for repayment of travel and hotel expenses, the applicants have provided two hotel invoices totalling EUR 728 and a document explaining that the travel expenses were calculated on the basis of transport by car, that is EUR 0.5 per km, giving a total amount of EUR 246.

42 As regards the disbursements relating to the participation of two lawyers at the hearing, the Council contends that only those of a single lawyer were objectively necessary and offers to reimburse an amount of EUR 350.

43 In that regard, the Court takes the view that, even though the cases were very similar, the lawyers had to prepare for the hearing and represent eight applicants at that hearing. The expenses incurred for the participation of two legal advisers at the hearing can therefore be regarded as expenses necessarily incurred within the meaning of Article 140(b) of the Rules of Procedure.

44 An amount of EUR 974 thus represents a fair assessment of the travel and subsistence expenses incurred by two lawyers to represent the applicants at the hearing on 28 October 2015.

45 In fixing the amount of recoverable costs, the 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).

46 As regards the sum of EUR 1 539 claimed for the present taxation of costs proceedings, it does not appear to be excessive, even though an application for taxation of costs is of a rather standardised nature.

47 In those circumstances, the applicants’ costs relating to these proceedings are to be taxed at EUR 1 539.

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

49 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).

50 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).

51 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.

52 It follows from all of the foregoing that the total amount of costs that may be recovered by the applicants from the Council is EUR 112 673, plus default interest as of the date on which this order is served.

1. The total amount of the costs to be reimbursed by the Council of the European Union to Unitec Bio SA, Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos SACIFI y A, Vicentin SAIC, Aceitera General Deheza SA, Bunge Argentina SA, Cargill SACI and LDC Argentina SA is set at EUR 112 673.

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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Unitec Bio v Council (Taxation of costs - Recoverable costs - Order) [2020] EUECJ T-111/14DEP_CO (10 March 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T11114DEP_CO.html Cite as: ECLI:EU:T:2020:99, EU:T:2020:99, [2020] EUECJ T-111/14DEP_CO

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