61995TO0097(01)_EN
Parties
Grounds
Operative part
Parties
In Case T-97/95 (92) II,
Sinochem National Chemicals Import & Export Corporation, established in Beijing, represented by Jean-François Bellis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Loesch and Wolter, 11 Rue Goethe,
applicant,
v
Council of the European Union, represented initially by Yves Cretien, Legal Adviser, and Antonio Tanca, of its Legal Service, acting as Agents, then solely by Mr Tanca, assisted by Hans-Jürgen Rabe and Georg M. Berrisch, Rechtsanwälte, Hamburg, and members of the Brussels Bar, with an address for service in Luxembourg at the offices of Alessandro Morbilli, Manager of the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,
defendant,
supported by
Commission of the European Communities, represented by Nicholas Khan, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,
and
Furfural Español SA, established in Alcantarilla, Spain, represented by José Rivas de Andrés, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 22 Rue Marie Adélaïde,
interveners,
APPLICATION for taxation of the costs to be paid by the applicant to the defendant, following the judgment of the Court of First Instance of 29 January 1998 in Case T-97/95 Sinochem v Council [1998] ECR II-85,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition),
composed of: R. García-Valdecasas, President, P. Lindh, J.D. Cooke, P. Mengozzi and M. Vilaras, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Facts, procedure and forms of order sought by the parties
1 By application lodged at the Registry of the Court of First Instance on 6 April 1995, Sinochem National Chemicals Import & Export Corporation, the applicant in Case T-97/95 (hereinafter Sinochem or the applicant), brought an action directed against Council Regulation (EC) No 95/95 of 16 January 1995 imposing a definitive anti-dumping duty on imports of furfuraldehyde originating in the People's Republic of China (OJ 1995 L 15, p. 11). By order of the President of the Fifth Chamber, Extended Composition, of the Court of First Instance of 2 October 1995, the Commission was granted leave to intervene in support of the form of order sought by the Council. By order of the President of the Fifth Chamber, Extended Composition, of the Court of First Instance of 18 December 1995, Furfural Español SA was also granted leave to intervene in support of the form of order sought by the Council.
2 By judgment of 29 January 1998 in Case T-97/95 Sinochem v Council [1998] ECR II-85, the Court of First Instance dismissed the application and ordered the applicant to bear its own costs and to pay the costs of the Council and of the intervener Furfural Español.
3 By letter of 9 July 1998, the Council requested Sinochem to pay its reimburseable costs in the case in question amounting to DEM 51 177.88, of which DEM 45 730 was for fees and expenses charged by the outside lawyers engaged to assist it (hereinafter the outside lawyers) and DEM 5 447.88 for internal Council expenses (mail, photocopies and mission of the Council's agent to Luxembourg).
4 By letter of 17 August 1998, Sinochem challenged that assessment, considering it to be exorbitant. It considered, first, the photocopy expenses both in terms of the price per unit and of the number of copies to be excessive and, secondly, the computation of the recoverable professional fees also to have been set too high. Finally, it offered to pay DEM 20 000 by way of total recoverable expenses.
5 By application lodged at the Registry of the Court on 3 May 1999, the Council applied for taxation of costs pursuant to Article 92(1) of the Rules of Procedure of the Court of First Instance.
6 The Council seeks the recovery of DEM 5 447.88 by way of internal expenses, which it breaks down as follows: DEM 8.93 for mail expenses; DEM 853.35 for expenses relating to photocopies made of the application and of the draft defence and sent to the permanent representations of the Member States before the European Union; DEM 4 244.48 for expenses relating to photocopying the defence, the reply and the replies to the Court's questions drawn up in the language of the case and the French translation of them, and sending them to the Court; and, finally, DEM 341.12 for expenses incurred by its Agent in travelling to Luxembourg in order to attend the hearing before the Court. The amount of the photocopy expenses put forward by the Council is based on an estimate of the number of copies made, namely 10 305 documents, at a price per unit of EUR 0.25.
7 So far as concerns the expenses incurred in engaging the services of outside lawyers, the Council seeks DEM 45 200 for their fees and DEM 530 for the expenses invoiced by them.
8 It also requests the Court to order Sinochem to pay an additional DEM 2 000 by way of expenses incurred in the proceedings for taxation of costs.
9 On 8 June 1999, the Commission lodged its observations on the application for taxation of costs made by the Council claiming that the Court should uphold it.
10 On 21 June 1999, Sinochem lodged its observations on the application for taxation of costs, in which it contests the amount of the fees charged by the outside lawyers as well as the amount of the photocopy expenses incurred by the Council and agrees to reimburse only BEF 300 000 by way of recoverable costs. Moreover, it considers that the additional request for DEM 2 000 in respect of the proceedings for taxation of costs is unfounded and, in any event, manifestly excessive.
Substance
11 Article 92(1) of the Rules of Procedure provides:
If there is a dispute concerning the costs to be recovered, the Court of First Instance hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie.
12 According to 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 regarded as recoverable costs.
13 In the present case, the Court must examine whether first, the internal expenses incurred by the Council in coordinating and preparing its defence and, secondly, the fees and costs invoiced by the outside lawyers may be considered to be expenses necessarily incurred within the meaning of the abovementioned provision.
Internal Council expenses
14 The Council submits that, since the mail expenses and the expenses for the mission of the Council's agent to Luxembourg were not contested by Sinochem, it would restrict its observations to the photocopy expenses which it considers to be expenses necessarily incurred by the parties for the purpose of the proceedings.
(a) Expenses relating to the photocopies sent to the Permanent Representations
15 The Council takes the view that the expenses relating to the 1 725 pages corresponding to the photocopies of the application and its draft defence sent to the Permanent Representations, which it calculates to be DEM 853.34, are fully recoverable on the ground that it is indispensable for its agents to have contact with the authority responsible for them, that is to say the 15 members, whenever an application is filed against it. That form of communication is necessary in order to enable the Council to defend itself before the Community judicature, because otherwise its Legal Service would operate completely detached from its members.
16 Sinochem considers that the shipments by the Council to the Permanent Representations in order to keep the members of the Council informed of the Legal Service's activities are not necessary expenses within the meaning of Article 91(b) of the Rules of Procedure. It considers that the expenses in question are not expenses which the Council must necessarily incur in order to defend its case but rather expenses which the Council has chosen to incur to fulfil what it considers to be its duty to inform its members. It would therefore be unjustified to include them in the computation of costs to be recovered. Accordingly, it submits that the amount of DEM 853.35 for the shipments to the Permanent Representations should be rejected from the computation of recoverable costs.
17 The Court would observe that the concept of expenses necessarily incurred by the parties for the purpose of the proceedings provided for in Article 91(b) of the Rules of Procedure cannot cover the costs which a party has had to incur on account of its internal organisation. In the present case, the costs claimed by the Council are not directly linked to its defence before the Court, but are entailed by the Council's internal organisation and the measures adopted, regard being had to the nature of that institution which constitutes a single legal entity despite consisting of 15 members, and stem from provisions concerning its internal organisation, adopted in order to ensure a proper flow of information between the institution and the Member States of which it is composed.
18 Accordingly, the expenses relating to the shipments by the Council of a copy of the pleadings to the Permanent Representations of the Member States are not in the nature of expenses necessarily incurred within the meaning of Article 91 of the Rules of Procedure.
(b) Expenses relating to the photocopies sent to the Court
19 The Council submits that the expenses relating to the 60 copies of each of the documents drawn up in the language of the case (defence, rejoinder and replies to the Court's questions) lodged before the Court and the 90 copies of the French translation of those documents, also forwarded to the Court, must be regarded as necessary and therefore recoverable expenses. In that regard, it observes, first, that it is under an obligation to provide translations to the Court in accordance with Article 43(2) of the Rules of Procedure and, secondly, it is required to provide the aforementioned number of copies as a result of an agreement between the Commission and the Court which the Court applies also to the Council. It therefore had to make 8 580 photocopies and send them to the Court, thus incurring necessary expenses which it calculates at DEM 4 244.48.
20 Sinochem considers that there is no legal basis for obliging the party ordered to pay the costs to reimburse the Council for expenses incurred by the latter in order to comply with its duty to provide translations of its documents. In its view, the Council, as applicant or defendant, must bear the costs associated with its legal duty, laid down in Article 43(2) of the Rules of Procedure, to provide the aforementioned translations. Furthermore, it submits that, by construing that article as authorising the Council to transfer the mandatory costs of translation to the unsuccessful party, the Council has infringed Article 35(2) of the Rules of Procedure which lays down the principle that the language of the case is to be chosen by the applicant and adds an unlawful financial burden to the right of appealing its decisions before the Court. Accordingly, it requests the Court to reject as excessive the amount of DEM 4 244.48 relating to the translations and shipments to the Court.
21 First and foremost, contrary to what is stated by Sinochem, the Council does not regard, in the present case, as necessary expenses the expenses relating to the translation into French of the documents lodged by it, but only the expenses relating to the photocopying and shipment to the Court of the 90 copies of all its documents translated into French and of the 60 copies of the documents in the language of the case.
22 It should be observed that, under Article 43(1) of the Rules of Procedure, (t)he original of every pleading must be signed by the party's agent or lawyer. The original, accompanied by all annexes referred to therein, shall be lodged together with five copies for the Court of First Instance and a copy for every other party to the proceedings. Copies shall be certified by the party lodging them.
23 It follows that only those expenses relating to the photocopying and shipment to the Court of five copies of the documents in the language of the case plus as many copies as there are parties to the case must be regarded as expenses necessarily incurred by the parties for the purpose of the proceedings within the meaning of Article 91(b) of the Rules of Procedure. The fact that, in the framework of inter-institutional cooperation, the institutions provide the Court with a greater number of copies as well as with copies of the documents translated into French, in order to facilitate the internal work of the Court, cannot, in any case, alter the scope of the provisions of its Rules of Procedure to the detriment of the other parties.
24 Accordingly, neither the expenses relating to the production of a number of copies of documents in the language of the case greater than that provided for in Article 43(1) of the Rules of Procedure nor the expenses relating to the copies of the French translations of the Council's documents sent to the Court may be regarded as recoverable.
(c) Price per copy estimated by the Council
25 The Council estimates the price per unit of the photocopies at EUR 0.25 and submits that this price is reasonable and in accordance with what many professionals charge for photocopy services.
26 Since the Court has held that the cost of photocopying the documents is not recoverable, apart from the copies provided for in Article 43(1) of the Rules of Procedure, the question of the price of the photocopies becomes irrelevant. None the less, it should be observed that Sinochem is right to state that the amount sought in the present case by the Council is not reasonable by comparison with prices charged by professionals for photocopy services and is not justified.
Expenses relating to the assistance provided by the outside lawyers to the Council
Arguments of the parties
27 The Council submits that, as is usually the case with anti-dumping proceedings, the present case concerned complex and very technical economic questions with which the Council's lawyers had to acquaint themselves. Moreover, the facts of the present case were rather complex and a great many of them as presented by the applicant turned out to be flawed and had to be corrected by the Council.
28 So far as concerns the importance of the case from the point of view of Community law, the Council submits that it contained aspects of a general interest because it raised matters which repeatedly arose in anti-dumping proceedings, such as the need to ascertain whether breach of a previous undertaking constitutes a factor sufficient to reject an undertaking offered and whether referring to such a previous breach satisfies the requirements of Article 253 EC. Finally, an equally important issue, concerning the amount of evidence which the Community industry must submit when it requests the initiation of an anti-dumping investigation, was also raised in the present case. That problem, referred to in paragraph 60 of the judgment, makes it possible to provide a clear precedent for this question which continuously arises.
29 As regards the particular difficulties of the case and the amount of work needed to resolve them, the Council submits that it was necessary for its lawyers to familiarise themselves with the product in question, furfuraldehyde, and the details of its marketing within the Community, in order to disprove the definition of the relevant market and the allegations on injury put forward by the applicant. Finally, the case generated a considerable amount of work, requiring the Council's lawyers to peruse voluminous material and to produce three documents - a defence of 27 pages; a rejoinder of 17 pages; and a reply of 7 pages to the written questions of the Court. Moreover, the hearing of 18 September 1997 required much preparation and the presence of a lawyer.
30 Sinochem contests the Council's computation of the expenses necessarily incurred in respect of the fees of its outside lawyers, regarding it as manifestly excessive. In that connection, it claims, first, that the Council had, at its sole discretion, decided to appoint a second outside lawyer to represent it whereas the Council's usual outside lawyer, Mr Berrisch, is very experienced in anti-dumping matters. That fact made it unnecessary to appoint a second lawyer and that appointment, it is claimed, caused unnecessary expenses to be incurred. Moreover, Sinochem criticises the fact that the amount of DEM 45 200 for legal fees was neither broken down nor itemised in the application for taxation of costs, which provides no detail as to the number of hours of work spent by the Council's lawyers. Furthermore, Sinochem points out that, contrary to what is claimed by the Council, the amount of work generated by the case in question was far from being considerable. The production of a defence, a rejoinder and the reply to the two questions of the Court is common practice before the Court and the length of the work provided was far from being disproportionate, since the documents referred to ran to 27, 17 and 7 pages respectively. Secondly, the scope of the application for annulment, in the present case, was also limited to factual rather than complex legal issues.
31 In addition, it observes that, according to settled case-law, the fees and expenses actually charged to the Council are not a relevant fact to the assessment of the recoverable costs. In the applicant's view, in the present case, it is particularly clear that the amount of the lawyer's fees and expenses actually charged should not be taken into account because the lawyers who assisted the Council were acquainted with Community anti-dumping law and procedure, and the economic factors underlying the case have not been considered in the proceedings before the Court. In fact, since Sinochem merely argued that the existence of a captive market justified a separate treatment for undertakings located in the People's Republic of China, the legal discussions were, to a large extent, limited to basic principles of Community law and anti-dumping law (for instance, the principle of proportionality).
Findings of the Court
32 According to settled case-law, the Community judicature is not empowered 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 (order of the Court of Justice in Case 318/82 Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727, paragraph 2, orders of the Court of First Instance in Joined Cases T-18/89 and T-24/89 Tagaras v Court of Justice [1992] ECR II-153, paragraph 13, and Case T-78/89 DEP PPG Industries Glass v Commission [1993] ECR II-573, paragraph 36). Since Community law does not contain any provisions laying down a scale of fees, the Community judicature 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 Community law, as well as the difficulties presented by the case, the amount of work generated by the dispute for the agents and advisers involved and the financial interest which the parties had in the proceedings and, in so doing, is not obliged to take account of any national scales of lawyers' fees or any agreement concluded in that regard between the party concerned and his agents or advisers (order in Leeuwarder Papierwarenfabriek, cited above, paragraph 3, and orders of the Court of First Instance in Case T-2/93 (92) Air France v Commission [1995] ECR II-533, paragraph 16, and Case T-175/94 (92) International Procurement Services v Commission [1998] ECR II-601, paragraph 10).
33 In the present case, the dispute was significant from the point of view of Community law and the subject-matter in question required analysis of both economic and legal issues as well as examination of complex matters of fact, which were studied and interpreted by the Council's lawyers. The case raised new and delicate issues such as the definition of the cause of the injury which the Community industry was likely to be subject to in the face of a large volume of imports from another non-Member country, determination of what evidence the Community industry must adduce when requesting the initiation of an anti-dumping investigation and ascertainment of whether infringement of a previous undertaking constitutes a factor sufficient to reject an undertaking offered and, finally, whether the fact of mentioning such a previous breach satisfies the requirements of Article 253 EC.
34 Furthermore, the financial importance of the case cannot be denied since the injury caused to the Community industry by the dumped imports has been quantified at EUR 1.7 million per year.
35 In view of the nature of the dispute, its difficulty, its importance and the financial interests which the parties had in the proceedings, fixing the recoverable costs incurred to date in the present case at DEM 45 730 for outside lawyers' fees and expenses and at DEM 500 for expenses incurred by the Council, that is a total of DEM 46 230, will represent a fair assessment.
36 Since that amount takes account of all the circumstances of the case up to date, there is no need to give a separate ruling on the costs incurred by the parties for the purposes of these proceedings.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)
hereby orders:
The total amount of costs to be reimbursed by Sinochem National Chemicals Import & Export Corporation to the Council is fixed at DEM 46 230.