Order of the Court of First Instance (Third Chamber, extended composition) of 10 January 2002. - Starway SA v Council of the European Union. - Taxation of costs. - Case T-80/97 DEP.



European Court reports 2002 Page II-00001



Summary

Parties

Grounds

Operative part



Keywords

1. Procedure - Costs - Taxation - Recoverable costs - Definition

(Rules of Procedure of the Court of First Instance, Arts 90 and 91(b))

2. Procedure - Costs - Taxation - Factors to be taken into account

(Rules of Procedure of the Court of First Instance, Art. 91(b))

Summary

1. It follows from Articles 91(b) and 90 of the Rules of Procedure of the Court of First Instance that recoverable costs are limited, first, to those incurred for the purposes of the proceedings before the Court of First Instance, to the exclusion of the stage preceding those proceedings and, second, to those necessary for those purposes.

( see paras 24-25 )

2. The Community 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 Community 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. In the absence of Community provisions laying down fee-scales, the Community 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 Community 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.

The significance of a case from the point of view of Community law by reason of the new questions of law and the complex questions of fact which it raises may justify high fees and also a party's being represented by a number of lawyers.

( see paras 26-31 )

Parties

In Case T-80/97 DEP,

Starway SA, established in Luynes (France), represented by J.-F. Bellis and P. De Baere, lawyers, with an address for service in Luxembourg,

applicant,

v

Council of the European Union, represented by A. Tanca and S. Marquardt, acting as Agents,

defendant,

APPLICATION for taxation of the costs to be paid to the applicant by the defendant following the judgment of the Court of First Instance of 26 September 2000 in Case T-80/97 Starway v Council [2000] ECR II-3099,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),

composed of: M. Jaeger, President, R. García-Valdecasas, K. Lenaerts, P. Lindh, and J. Azizi, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

Facts and procedure

1 On 10 January 1997 the Council adopted Regulation (EC) No 71/97 extending the definitive anti-dumping duty imposed by the initial regulation on bicycles originating in the People's Republic of China to imports of certain bicycle parts from the People's Republic of China, and levying the extended duty on such imports registered under the regulation initiating the investigation (OJ 1997 L 16, p. 55). That regulation was adopted on the basis of Article 13(1) 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), which provides that anti-dumping duties imposed pursuant to that regulation may be extended to imports from third countries of like products, or parts thereof, when circumvention of the measures in force is taking place.

2 Pursuant to Article 2(1) and (3) of that regulation, the definitive anti-dumping duty introduced by Regulation (EEC) No 2474/93 of 8 September 1993 imposing a definitive anti-dumping duty on imports into the Community of bicycles originating in the People's Republic of China and collecting definitively the provisional anti-dumping duty (OJ 1997 L 228, p. 1), was extended to imports of certain essential bicycle parts.

3 By application lodged at the Registry of the Court of First Instance on 28 March 1997, the applicant sought annulment of Article 2 of Regulation No 71/97 in so far as it applied to the applicant. By order of 17 September 1997, the Court of First Instance granted the Commission leave to intervene in support of the form of order sought by the Council.

4 By judgment of 26 September 2000 in Case T-80/97 Starway v Council [2000] ECR II-3099 (the main judgment), the Court of First Instance annulled Article 2 of Regulation No 71/97 in so far as it concerned imports of essential bicycle parts by the applicant between 20 April 1996 and 18 April 1997. The Court of First Instance ordered the Council to pay the applicant's costs.

5 By letter of 27 October 2000, the applicant requested the Council to pay a total amount of BEF 4 975 000 (EUR 123 327.03) by way of costs incurred in Case T-80/97.

6 By letter of 20 November 2000, the Council requested the applicant to provide particulars of the amount requested. The applicant replied by letter of 20 December 2000, in which it provided the Council with particulars of its costs.

7 By letter of 15 February 2001, the Council replied to the letter of 20 December 2000 and informed the applicant that it considered the amount requested excessive. On 22 February 2001, the applicant confirmed the amount stated in the letter of 20 December 2000.

8 On 8 March 2001, the Council replied that it was not prepared to accept the amount requested by way of costs and that, should the applicant not reconsider the amount, it was prepared to have the matter examined by the Court of First Instance.

9 By application lodged at the Registry of the Court of First Instance on 12 July 2001, the applicant applied for taxation of costs, pursuant to Article 92(1) of the Rules of Procedure of the Court of First Instance.

10 By pleadings lodged at the Registry of the Court of First Instance on 24 September 2001, the Council and the Commission submitted their observations on the application.

Forms of order sought by the parties

11 The applicant claims that the Court should fix the costs payable to it by the Council at BEF 4 975 000 (EUR 123 327.03).

12 The Council claims that the Court should fix the recoverable costs, including those relating to the present proceedings, at BEF 1 474 000 (EUR 36 539.51).

13 The Commission claims that the Court should fix the recoverable costs, including those relating to the present proceedings, at BEF 1 500 000 (EUR 37 184.03).

Arguments of the parties

14 The applicant maintains that the amount of the costs requested is justified, first, by the purpose and the nature of the proceedings and by their significance from the point of view of Community law. Those proceedings marked the first application for annulment of a regulation extending an anti-dumping duty adopted on the basis of Article 13 of Regulation No 384/96. The applicant claims that, in that context, the case raised for the first time issues relating to the locus standi of companies concerned by a regulation extending an anti-dumping duty. The case likewise clarified the question of the matters to be proved and the burden of proof in an investigation into circumvention of an anti-dumping duty and also of the probative value of certificates of origin in such investigations.

15 The Council contends that the applicant has failed to explain why the fact that this is the first case relating to that procedure for extending an anti-dumping duty justifies such high fees for the applicant's legal representatives or to show that the main case was necessarily complex.

16 The Council states that the applicant, in its application, did not develop any arguments concerning the admissibility of the action and that, in its reply, it merely cited the relevant case-law. There is nothing to indicate that special research was necessary in that regard. Furthermore, the Council, supported by the Commission, contends that the reasoning which led the Court of First Instance to conclude that the contested regulation was of direct concern to the applicant was limited to the particular circumstances of the present case, since, as may be seen from the main judgment, the applicant was exempted from the extended duty only after significantly altering its supply procedure. As regards the burden of proof in an anti-circumvention investigation, the Council claims that the applicant propounded the argument that the institutions had not adduced evidence that the bicycle parts in question originated in countries subject to the definitive anti-dumping duty. On the contrary, the Court of First Instance annulled Regulation No 71/97 on the ground that the institutions had not carefully and impartially examined the documents sent to them during the administrative procedure (paragraph 117 of the main judgment). Likewise, the Council and the Commission contend that the work carried out by the applicant's lawyers in relation to the probative value of the various documents submitted to the Commission does not justify the amount of legal fees claimed. On that point, the main judgment followed the broad lines of the principles governing the taking of evidence.

17 The applicant further maintains that the difficulty of the case gave rise to considerable work during the contentious procedure. As this was the first action brought in respect of a regulation extending the scope of a duty, the applicant could not rely on any established case-law. The case was likewise particularly difficult owing to the complexity of the facts and more particularly to the evidence. The applicant draws attention to the fact that it was at the Commission's request that it was required to assemble extremely voluminous documentation so that the origin of the bicycle parts concerned could be traced during the administrative procedure. Before the Court of First Instance, the applicant was required to state, both in its written submissions and at the hearing, the reasons why it had not been able to provide the certificates of origin which the Commission had asked it to produce during the administrative procedure and was led to show the Court of First Instance that the documents provided to the Commission during the administrative procedure made it possible, even in the absence of certificates of origin, to trace the origin of the imported parts. It took six pages of explanations and 82 pages of annexes in order to show the origin of a single bicycle part and it is apparent from the main judgment that the complexity of the mode of proof demanded by the Commission had a significant effect on the outcome of the dispute. The applicant accepts that, in the main judgment, the Court of First Instance did not examine the origin of the bicycle parts in question. However, that fact is to be explained by the fact that the Court of First Instance already had sufficient evidence to annul Article 2 of Regulation No 71/97 on other grounds.

18 The Council contends that the complexity of the elements of fact and of evidence to which the applicant refers came to light in the present case during the administrative procedure before the Commission and not during the judicial procedure before the Court of First Instance, so that the resulting costs cannot be taxed by the Court of First Instance (orders of the Court of Justice of 30 November 1994 in Case C-294/90 DEP British Aerospace v Commission [1994] ECR I-5423, paragraphs 11 to 14, and Case C-222/92 DEP SFEI and Others v Commission [1994] ECR I-5431, paragraphs 11 to 13). The explanation before the Court of First Instance of the problem associated with the mode of proof as presented during the administrative procedure was not per se particularly difficult for the applicant. The Council further draws attention to the fact that, at the hearing, when the Court of First Instance proposed that the applicant demonstrate that the mass of documents submitted to the Court was capable of proving the origin of the bicycle parts in question, the applicant objected that a hearing did not lend itself to such an exercise.

19 The Commission states that the applicant's lawyers had already advised their client throughout the entire administrative procedure and must therefore necessarily have been aware of the facts of the case and of the related legal issues. The arguments before the Court of First Instance were therefore repetitive in nature. The Commission further claims that it is difficult for the applicant to maintain that proving the disputed origin of the documents in question required considerable work, since the applicant claimed before the Court of First Instance that that proof had been adduced in the context of the administrative procedure.

20 Last, the applicant claims that the total amount of anti-dumping duty levied pursuant to the regulation annulled by the main judgment was FRF 10 million and that that sum was particularly high, in the light of the applicant's small size and of the fact that the applicant had been placed in judicial liquidation following the case.

21 The Council contends that the size of the financial interests involved must not influence the amount of costs recoverable.

22 On the basis of its arguments, the applicant seeks to recover the fees of three lawyers, amounting to a total of BEF 4 809 000 (EUR 119 212) (388 hours at BEF 8 000 to 15 000 (EUR 198.31 to 371.84) per hour) and also other costs amounting to BEF 166 000 (EUR 4 115.03) in respect of photocopying, telecommunications and travel.

23 The Council estimates the amount of legal fees recoverable at BEF 1 600 000 (EUR 39 662.96) (200 hours at BEF 8 000 (EUR 198.31) per hour) and the other costs at BEF 34 000 (EUR 842.84). It also claims that the Council's costs incurred in connection with the present application for taxation of costs, namely BEF 160 000 (EUR 3 966.30) (20 hours at BEF 8 000 (EUR 198.31) per hour), should be deducted from the overall sum, since the applicant refused the Council's invitation to revise the amount of its costs downwards.

Findings of the Court

24 Under Article 91(b) of the Rules of Procedure of the Court of First Instance, recoverable costs are considered to be expenses necessarily incurred by the parties for the purposes of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers. It follows from that provision that recoverable costs are to be limited, first, to those incurred for the purposes of the proceedings before the Court of First Instance and, second, to those necessary for those purposes (see, by analogy, orders of the Court of First Instance in Case T-115/94 DEP Opel Austria v Council [1998] ECR II-2739, paragraph 26, and Case T-64/99 DEP UK Coal v Commission [2001] ECR II-2547, paragraph 25).

25 Next, it should be observed that, by proceedings, Article 91 of the Rules of Procedure refers only to the proceedings before the Court of First Instance, to the exclusion of the stage preceding those proceedings. That follows in particular from Article 90 of the Rules of Procedure, which refers to [p]roceedings before the Court of First Instance (see, by analogy, orders of the Court of Justice in Case 75/69 Hake v Commission [1970] ECR 901, at 902, and in British Aerospace v Commission, cited above, paragraphs 11 and 12).

26 As regards the costs relating to the proceedings before the Court of First Instance, it should also be observed that, according to a consistent line of decisions, the Community 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 (orders of the Court of First Instance in Case T-120/89 DEP Stahlwerke Peine-Salzgitter v Commission [1996] ECR II-1547, paragraph 27, in Opel Austria v Council, cited above, paragraph 27, and in UK coal v Commission, cited above, paragraph 26).

27 It has also consistently been held that, in the absence of Community provisions 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 Community 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 (order of the President of the Third Chamber of the Court of Justice in Case 318/82 DEP Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727, paragraphs 2 and 3; orders of the Court of First Instance in Case T-2/93 DEP Air France v Commission [1995] ECR II-533, paragraph 16, Opel Austria v Council, paragraph 28, and UK Coal v Commission, paragraph 27).

28 It is against those criteria that the amount of the costs recoverable in the present case must be determined.

29 As regards the purpose and nature of the proceedings, and also their significance from the point of view of Community law, it is clear that these proceedings were relatively complex in both law and in fact. As the applicant has correctly stated, this was the first case in which annulment was sought of a regulation extending an anti-dumping duty adopted on the basis of Article 13 of Regulation No 384/96. It raised a number of relatively complex questions which either had not yet been resolved by the Community Courts or which, in this case, presented particular aspects in the light of the applicable provisions.

30 In particular, this case was the first to raise the question of the admissibility of an action brought by an importer of separate parts of a product subject to a definitive anti-dumping duty against a regulation extending the anti-dumping duty to those separate parts, even though, under the applicable Community legislation, the importer could in certain conditions be exempt from the extended duty. The proceedings were likewise the first to turn on the interpretation of Article 13(2) of Regulation No 384/96 as regards the object and the apportionment of the burden of proof as concerns the conditions to be satisfied in order to conclude that an assembly operation is deemed to constitute avoidance of an anti-dumping duty. Last, the case also provided important clarification of the forms of evidence which may be required by the Community institutions in the context of procedures extending an anti-dumping duty and, in particular, of the probative value of the certificates of origin.

31 It follows that the proceedings justified high fees and the applicant's being represented by a number of lawyers (see, to that effect, orders in Stahlwerke Peine-Salzgitter v Commission, paragraph 30, and Opel Austria v Council, paragraph 29).

32 As regards the difficulties of the case and the extent of work involved in the proceedings before the Court of First Instance, it follows from the foregoing that the proceedings may have required a relatively large amount of work on the part of the applicant's lawyers, in particular as regards the analysis of the applicable rules and the relevant case-law. Contrary to the Council's contention, that work is reflected in the applicant's pleadings.

33 Furthermore, the financial significance of the case for the applicant shows that the proceedings affected its financial interests to a significant extent.

34 In so far as the applicant pleads by way of justification for the large number of hours worked by its lawyers the voluminous documentation relating to the origin of the bicycle parts in question, which was submitted to the Court of First Instance at the stage of the reply, it must be observed that it follows from the factual framework of the case, as summarised in the main judgment, that, at the Commission's request, the applicant had already submitted that documentation during the administrative procedure in order to enable the Commission to ascertain, in the absence of certificates of origin, whether it was possible to trace the origin of the parts in that way (paragraphs 20 and 25 of the main judgment).

35 It is true that the applicant endeavoured to demonstrate to the Court during the judicial proceedings that the mass of documents was capable of proving the origin of the parts in question and, in that regard, carried out work additional to that carried out during the procedure before the Commission. However, the Council and the Commission were correct to object that that work had to a large extent already been carried out during the administrative procedure. As the Commission rightly states, the applicant would otherwise have been unable to maintain before the Court of First Instance that it had adduced evidence of the origin of the bicycle parts in question during the administrative procedure. Last, it is apparent from the file that, as regards the evidence relating to the origin of the parts, the applicant already submitted to the Commission legal and factual arguments comparable to those which it presented before the Court of First Instance and, accordingly, that it was already very familiar with the case (see, to that effect, the order in Opel Austria v Council, paragraph 30).

36 The applicant has not provided the Court with any details as to how the hours worked by the lawyers concerned were allocated to the various tasks carried out in the context of the procedure before the Court of First Instance and, in particular, of the number of hours devoted in assembling and presenting the documentation relating to the origin of the bicycle parts in question. In such circumstances, and in the light of all the foregoing, it seems appropriate to fix the number of hours recoverable at 200 and to take as the hourly rate the average of those submitted by the lawyers concerned, namely BEF 11 500 (EUR 285.08).

37 As regards the photocopying costs of BEF 125 000 (EUR 3 098.67) incurred in presenting the Court with the voluminous documentation which the applicant had previously submitted to the Commission at the latter's request, it should be observed that, as the Council rightly submitted at the hearing, following the proposal of the Court of First Instance that it demonstrate that the mass of documents was apt to prove the origin of the parts in question with the assistance of a specific example, the applicant objected that a hearing did not lend itself to such an exercise. The applicant also stated, while submitting that documentation to the Court, that it had not intended to request the Court to examine that documentation item by item, but only to provide the Court with the complete file of the administrative procedure before the Commission. In such circumstances, the photocopying costs incurred in submitting that documentation to the Court cannot be regarded as expenses necessarily incurred ... for the purpose of the proceedings within the meaning of Article 91(b) of the Rules of Procedure. Those costs must therefore be deducted from the sum claimed by way of costs other than fees. The remaining costs relating to that expenditure have not been disputed by the Council.

38 In the light of the foregoing considerations, the fees and costs recoverable by the applicant can be assessed on an equitable basis at BEF 2 341 000 (EUR 58 031.87).

39 Since the Court of First Instance, when determining the recoverable costs, took account of all the circumstances of the case until the time of such determination, it is not necessary to give a separate decision on the costs incurred by the parties in connection with these supplementary proceedings (orders of the Court of First Instance in Case T-84/91 DEP Meskens v Parliament [1993] ECR II-757, paragraph 16, Opel Austria v Council, paragraph 33, and UK Coal v Commission, paragraph 33).

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition),

hereby orders:

The total costs payable by the Council to the applicant in Case T-80/97 are fixed at BEF 2 341 000 or EUR 58 031.87.