CELEX: 62016CO0605(02)
Language: en
Date: 2019-10-15 00:00:00
Title: Order of the Court (Tenth Chamber) of 15 October 2019.#PT Ciliandra Perkasa v Council of the European Union.#Taxation of costs.#Case C-605/16 P-DEP.

ORDER OF THE COURT (Tenth Chamber)
15 October 2019 (*)
(Taxation of costs)
In Case C‑605/16 P-DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court, brought on 23 March 2019,

PT Ciliandra Perkasa, established in West Jakarta (Indonesia), represented by F. Graafsma and J. Cornelis, advocaten,
applicant,
v

Council of the European Union, represented by H. Marcos Fraile, acting as Agent,
defendant,
THE COURT (Tenth Chamber),
composed of I. Jarukaitis, President of the Chamber, E. Juhász and C. Lycourgos (Rapporteur), Judges,
Advocate General:  G. Hogan,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following

Order

1        The subject matter of this action is the taxation of the costs incurred by PT Ciliandra Perkasa (‘PT Ciliandra’) in Case C‑605/16 P.

2        By an appeal brought on 24 November 2013, the Council of the European Union asked the Court, under Article 56 of the Statute of the Court of Justice, to set aside the judgment of the General Court of the European Union of 15 September 2016, PT Ciliandra Perkasa v Council (T‑120/14, ‘the judgment under appeal’, EU:T:2016:501), by which the General Court annulled 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 regulation’) in so far as it concerns PT Ciliandra.

3        By document lodged via e-Curia on 22 January 2018, the Council informed the Court, in accordance with Article 148 of the Rules of Procedure, that it wished to withdraw its appeal.

4        By document lodged via e-Curia on 7 February 2018, PT Ciliandra informed the Court that it had no comments on the withdrawal, but requested nonetheless that the Council be ordered to pay the costs.

5        By order of 16 February 2018, the President of the Court removed Case C‑605/16 P (Council v PT Ciliandra Perkasa, EU:C:2018:155) from the Court’s register and, in accordance with Articles 141(1) in conjunction with 184(1) of the Rules of Procedure, ordered the Council to pay the costs incurred by PT Ciliandra.

6        No agreement having been reached between PT Ciliandra and the Council on the amount of recoverable costs, PT Ciliandra brought the present action under Article 145 of the Rules of Procedure.
 Forms of order sought by the parties

7        PT Ciliandra requests the Court to fix the amount of recoverable costs to be paid by the Council at EUR 30 673.49.

8        The Council contends that the Court should reject that application and fix the recoverable costs at EUR 7 800.
 The action

 Arguments of the parties

9        In the first place, PT Ciliandra submits that the amount of work done by the lawyers in all proceedings related to Case C‑605/16 P is perfectly reasonable and that all the costs related thereto have been ‘necessarily incurred’ within the meaning of Article 144(b) of the Rules of Procedure.  The legal fees of EUR 25 000 for 49.11 hours of work undertaken for the appeal proceedings and a sum of EUR 5 497 for the 14.2 hours of work undertaken for the present application for taxation of costs, namely a total amount of EUR 30 673.49, represent an indispensable amount of work in order to ensure the defence of the client’s interest.

10      PT Ciliandra notes, as a preliminary point, that it was the decision of the Council to both appeal and then eventually discontinue the proceedings.  If the Council had not lodged such an appeal, the costs, reimbursement of which is sought in the present proceedings, would not have been incurred. In that regard, the applicant claims that, as a result of the notification of appeal, thorough preparation and work were needed as the Council’s actions in choosing to terminate the proceedings could not possibly have been pre-empted by PT Ciliandra or by the law firm representing it.

11      PT Ciliandra submits, first, that the work of the two lawyers and the partner responsible amounted, in the context of the appeal proceedings in Case C‑605/16 P, for the first lawyer, to a total amount of 34.41 hours for research, drafting, reviewing and preparing confidential and non-confidential versions of the response to the appeal, for the second lawyer, to 7 hours on further research, review and drafting of that document, and for the partner responsible for the case,  to a total amount of 7.7 hours spent on preparing and finalising that document and updating the client.

12      In that regard, PT Ciliandra claims that there was no duplication of work and that the existence of parallel procedures in Case C‑604/16 P has not generated economies of scale, but rather resulted in a great increase of work.

13      Moreover, it is clear from the case-law of the Court that account must be taken of the number of hours spent on the case in question, regardless of the actual number of lawyers who have worked in the case. The applicant requests that the administrative costs of EUR 176.49 also be deemed recoverable.

14      Secondly, according to PT Ciliandra, the rates for which reimbursement is sought are reasonable.  Thus, those rates would vary from EUR 360 per hour for a senior associate to EUR 495 per hour for a partner, which could not be considered excessive, given that the hourly rates charged by lawyers are proportionate to their level of expertise and seniority. In that regard, the applicant notes that the amount recoverable varies from case to case, depending, inter alia, on the complexity of the case and the stakes at issue and the financial interest it presents for the parties.

15      Thirdly, the applicant submits that the 14.2 hours worked in relation to the present application for the taxation of recoverable costs at an hourly rate ranging from EUR 325 per hour to EUR 535 per hour amounting to EUR 5 497 should, in accordance with the case-law of the Court, also be deemed recoverable and included in the total amount of recoverable costs that were necessarily incurred in the present case.

16      In the second place, PT Ciliandra argues that the importance of Case C‑605/16 P both from the point of view of EU law and trade policy is undeniable, in so far as a reversal of the judgment under appeal would have had far-reaching consequences not only for the present case but also for other future or ongoing anti-dumping cases.

17      First, according to the applicant, the appeal brought by the Council, divided into three grounds of appeal by which the Council relied on several errors of law committed by the General Court, required lawyers to prepare their replies meticulously.

18      Secondly, PT Ciliandra submits that the case at first instance in the judgment under appeal triggered a series of measures and challenges relating to an important EU issue, namely exports of biodiesel to the EU market by Indonesia and Argentina.  In addition, the case raised important points of law, the most notable of which are the interpretation 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, and corrigendum OJ 2010 L 7, p. 22), as amended by Regulation (EU) No 765/2012 of the European Parliament and of the Council of 13 June 2012 (OJ 2012 L 237, p. 1) (‘the basic regulation’), and the burden of proof on an investigating authority when it relies on Article 2(5) of that regulation.

19      PT Ciliandra adds that the difficulties presented by the present case have given rise to a number of complex factual, economic and legal issues, involving studies and research into the Indonesian biodiesel market, market mechanisms and the role of the State concerned in that particular market, which has involved many hours of intense work by the lawyers with their client.

20      Thirdly, the case involved a considerable financial interest for PT Ciliandra, given that the rate of the definitive anti-dumping duty applicable to the product in question was, in so far as Indonesian imports are concerned, set at 76.94 per tonne net, and that the appeal could have led to a reversal of the annulment of the contested regulation.

21      In response to PT Ciliandra’s application, the Council sets out, first of all, the costs which it considers to be recoverable for the purposes of the proceedings before the Court.

22      First, the Council submits that the number of hours claimed by the applicant is excessive and proposes a total of 30 hours as the maximum time objectively needed to handle the proceedings before the Court.  Indeed, most of the arguments put forward in support of the application submitted to the Court have already been developed during the administrative phase and in the application submitted to the General Court.  Moreover, the applicant’s lawyers benefited from significant economies of scale in so far as Case C‑604/16 P was dealt with in parallel and concerned very similar points of law and fact.

23      Secondly, the Council submits that, under the circumstances of the present case, an experienced professional, who had familiarity with both the factual and legal issues at hand, could have efficiently and rapidly dealt with the case.  Thus, the hours spent on the file solely as a consequence of the fact that it was entrusted to several lawyers and the duplication of work such as internal consultation, reviewing, amending, advising and instructing must be excluded from the calculation of the total amount of costs.

24      Thirdly, the Council claims that an hourly rate of EUR 250 is objectively justified in order to act in the applicant’s defence in the present case.

25      Fourthly, the alleged administrative costs cannot be justified in any way.

26      Fifthly, in so far as an application for taxation of costs is rather standardised and is characterised, in principle, by the absence of any difficulty, the sum of EUR 5 497 requested for those proceedings is disproportionate and a sum of EUR 300 would be sufficient in that regard.

27      In the second place, with regard to the alleged complexity and importance of the case in question, the Council submits, first, that the lawyers specialising in anti-dumping, who worked on the appeal, had already been able to acquire in-depth knowledge of the case given that they had represented the applicant not only at first instance but also in the administrative proceedings.

28      Secondly, the judgment under appeal did not raise any new or particularly difficult questions.  The conclusion reached by the General Court in that judgment was simply a confirmation of the case-law arising from the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65), and the question of the burden of proof did not present any particular difficulty.

29      Thirdly, the annexes to the applicant’s response to the Council’s appeal do not set out any indication that the applicant’s lawyers conducted any complex economic studies.

30      Fourthly, the Council maintains that the applicant did not submit any evidence to the Court which indicates that the case presented an economic interest of an unusual nature and that the financial interest at stake was undeniable.
 Findings of the Court

31      Under Article 144(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 recoverable costs.

32      It thus follows from the wording of that provision that the remuneration of a lawyer is one of the expenses necessarily incurred within the meaning of that provision. It also follows that the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 19).

33      Moreover, in determining the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of the costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (order of 3 October 2018, Orange v Commission, C‑486/15 P-DEP, not published, EU:C:2018:824, paragraph 27 and the case-law cited).

34      Furthermore, it should be borne in mind that the Courts of the European Union are authorised, not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs (order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 20).

35      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, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the economic interests which the parties had in the proceedings (order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 21).

36      It is in the light of all those factors that the amount of the recoverable costs in the present case must be assessed.

37      In the first place, as regards the subject matter and the nature of the dispute, it is appropriate to note that the proceedings concerned are appeal proceedings which are, by nature, limited to questions of law and do not concern themselves with findings as to the facts or the assessment of the facts of the dispute (orders of 15 October 2015, Council v Ningbo Yonghong Fasteners, C‑601/12 P-DEP, not published, EU:C:2015:726, paragraph 19, and of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 23).

38      In the second place, as regards the significance of the dispute from the point of view of EU law and the difficulties presented by the case, it should be noted that the appeal brought by the Council sought to have set aside the judgment under appeal by which the General Court annulled the contested regulation in so far as it concerned PT Ciliandra.

39      In support of its appeal, the Council put forward three grounds of appeal. By its first ground of appeal the Council alleged misinterpretation, first, of Article 2(5) of the basic regulation and, secondly, of the burden of proof borne by the institutions in the application of that provision. By its second ground of appeal the Council alleged a failure to state reasons in the judgment under appeal and also alleged a distortion of the facts. By its third ground of appeal it alleged that the operative part of that judgment gave undue effects to the finding of illegality reached by the General Court.

40      It must be held that the first ground of appeal raised a new point of law which was highly complex and called for an in-depth analysis.  That ground of appeal concerned the Court’s interpretation of Article 2(5) of the basic regulation, which provided, in essence, for the various possibilities on the basis of which the institutions could take into account the costs relating, in particular, to the production and sale of a product under investigation for the purpose of calculating the normal value of the like product.

41      Specifically, the Council claimed that the General Court applied an  incorrect legal test when assessing the conditions to be met for disregarding, in the context of calculating the normal value of the like product, the prices of the palm oil contained in the accounting records of the relevant Indonesian producers.  In particular, the Council criticised the General Court for misapplying the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65).  In so doing, the General Court had, according to the Council, infringed Article 2(5) of the basic regulation and placed too heavy a burden of proof on the EU institutions.

42      It follows that that first ground of appeal did not concern merely an application of EU law, as interpreted by the Court; it required a detailed analysis in so far as the point of law it raised, relating to the interpretation of Article 2(5) of the basic regulation, would have led the Court to rule, in particular, on the discretion available to the EU institutions when calculating the normal value of the like product.

43      By contrast, as regards the second and third grounds of appeal, relating respectively to a failure to state reasons and to the consequences for the legality of the contested regulation which the General Court should have drawn from the finding that the institutions had erred in the interpretation and application of Article 2(5) of the basic regulation, it must be noted that those grounds of appeal did not present any particular complexity.

44      As regards, in the third place, the amount of work carried out, it should be recalled that, when fixing the amount of the recoverable costs, the Court must take account of the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings, irrespective of the number of lawyers amongst whom the work was shared (orders of 3 September 2009, Industrias Químicas del Vallés v Commission, C‑326/05 P-DEP, not published, EU:C:2009:497, paragraph 48, and of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 28).

45      In that respect, while it appears, in view of the above findings, that the drafting by PT Ciliandra’s lawyers of the response in the appeal brought by the Council required an in-depth analysis of the first ground of appeal, the corresponding workload was not particularly heavy given that that response required consideration of only a limited number of points of law and that matters of fact did not arise at the appeal stage. Similarly, the preparation of confidential and non-confidential versions could not give rise to a significant workload since the information concerned had already been treated as confidential at first instance.

46      Furthermore, lawyers who claim to be highly qualified and very experienced in anti-dumping law and whose services are invoiced at an average hourly rate ranging from EUR 360 to EUR 495 are presumed to handle the cases entrusted to them, including those involving some complexity, efficiently and speedily (see, to that effect, order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 31).

47      In that regard, the lawyers instructed by PT Ciliandra had already been able to acquire in-depth knowledge of the case at issue during both the administrative proceedings before the Commission and the proceedings before the General Court, in so far as they had already represented that company in those two sets of proceedings, which should have not only facilitated their work but also reduced the time needed to study the appeal and draft the response.

48      It follows that the 49.11 hours of work performed by the lawyers instructed by PT Ciliandra in the appeal do not appear in their entirety to have been ‘necessarily incurred for the purpose of the proceedings’, within the meaning of Article 144(b) of the Rules of Procedure.

49      In the fourth place, as regards the economic interests at issue in the dispute, it should be noted that PT Ciliandra had a definite interest in the Council’s appeal being dismissed.  By that appeal, the Council requested the Court to set aside the judgment under appeal by which the General Court had annulled the contested regulation in so far as it concerned PT Ciliandra.  However, the fact remains that no evidence was submitted to the Court to indicate that that case presented an economic interest of an unusual nature for PT Ciliandra (see, to that effect, order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 35).

50      In the fifth and last place, with regard to the sum of EUR 5 497 claimed in connection with the present taxation of costs proceedings, it must be noted that an application for taxation of costs is of a rather standard character and is characterised, in principle, by the absence of any difficulty (order of 14 June 2017, CPVO v Schräder, C‑546/12 P-DEP, not published, EU:C:2017:460, paragraph 28).

51      PT Ciliandra’s financial claim appears, for this reason, disproportionate and cannot be upheld, at least in its entirety, as objectively necessary costs for the purposes of the present proceedings.

52      In the light of all the foregoing considerations, the costs recoverable by PT Ciliandra from the Council in Case C–605/16 P may be fairly assessed at a total amount of EUR 11 000.
On those grounds, the Court (Tenth Chamber) hereby orders:

The total amount of costs which the Council of the European Union must pay to PT Ciliandra Perkasa in respect of Case C‑605/16 P shall be set at EUR 11 000.

Luxembourg, 15 October 2019.

A. Calot Escobar
 
I. Jarukaitis

Registrar
 
President of the Tenth Chamber

*      Language of the case: English.