CELEX: 62017CO0100
Language: en
Date: 2021-01-20 00:00:00
Title: Order of the Court (Tenth Chamber) of 20 January 2021.#Council of the European Union v Gul Ahmed Textile Mills Ltd.#Taxation of costs.#Case C-100/17 P-DEP.

ORDER OF THE COURT (Tenth Chamber)
20 January 2021 (*)
(Taxation of costs)
In Case C‑100/17 P–DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court of Justice, brought on 12 June 2020,

Council of the European Union, represented by J.-P. Hix, acting as Agent,
applicant,
v

Gul Ahmed Textile Mills Ltd, established in Karachi (Pakistan), represented by L. Ruessmann, avocat, and J. Beck, Solicitor,
defendant,
THE COURT (Tenth Chamber),
composed of M. Ilešič, President of the Chamber, E. Juhász (Rapporteur) and C. Lycourgos, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Advocate General,
makes the following

Order

1        The subject matter of this action is the taxation of the costs incurred by the Council of the European Union in Case C‑100/17 P.

2        By appeal brought on 24 February 2017, Gul Ahmed Textile Mills Ltd (‘Gul Ahmed’) sought, in accordance with Article 56 of the Statute of the Court of Justice of the European Union, to have set aside the judgment of the General Court of the European Union of 15 December 2016, Gul Ahmed Textile Mills v Council (T‑199/04 RENV, not published, EU:T:2016:740), by which the General Court dismissed its action for annulment of Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan (OJ 2004 L 66, p. 1).

3        By its judgment of 18 October 2018, Gul Ahmed Textile Mills v Council (C‑100/17 P, EU:C:2018:842), the Court dismissed that appeal and ordered Gul Ahmed to pay the costs.

4        Since no agreement was reached between the Council and Gul Ahmed on the amount of those costs, the Council made the present application.
 Forms of order sought

5        The Council requests the Court to fix the amount of recoverable costs at EUR 24 356.92, together with interest at the rate of 3.5% from 30 November 2018 until full payment.

6        Gul Ahmed contends, principally, that the application for taxation is inadmissible and, in the alternative, that the costs should be fixed at a total amount of EUR 10 000 and that the claim for default interest should be dismissed. Gul Ahmed also contends that the Court should order the Council to pay the costs of the present proceedings.
 Arguments of the parties

7        The Council submits that the appeal, which consisted of two grounds of appeal, raised issues of a certain complexity, such as the issue of Gul Ahmed’s interest in bringing proceedings and the burden of proof relating thereto. Furthermore, an Opinion  was requested in the present case.

8        According to the Council, that complexity justifies the fact that 62.40 hours of work were invoiced in respect of the examination of that file by two lawyers, to which were added 15.30 hours in respect of preparation for the hearing and attendance at that hearing, which was attended by only one of the two lawyers. Those hours of work included the hours devoted to contacts with the European Commission, the other respondent, with which it was necessary to coordinate the defence arguments.

9        As regards the financial interests, the Council emphasises that Regulation No 397/2004, the annulment of which was sought by Gul Ahmed, had considerable economic consequences for that company.

10      It also claims that the hearing required it to incur, by way of the travel and subsistence expenses of its agent and its counsel, the respective sums of EUR 413.72 and EUR 268.20, that is to say, a total amount of EUR 681.92.

11      Lastly, it states that the fixing of the amount of costs must come with the obligation to pay default interest from 30 November 2018, pursuant to Article 99 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014 and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

12      Gul Ahmed contends that the Council failed to take action in the recovery of costs.

13      In that regard, that company emphasises that, following the challenge to the costs which it raised against the Council on 2 January 2019, the Council did not react at all until 9 January 2020 and did not then submit the present application to fix the costs to the Court until 11 June 2020.

14      It concludes that the application for taxation must be declared inadmissible, in so far as it was entitled to consider that the Council had waived its right to recover the costs in that case, the outcome of which was of no significance to that institution, either in terms of EU law or in the light of its financial importance.

15      As regards the substance of the case, Gul Ahmed submits that the Council has not shown that the legal costs which it seeks to recover were necessarily incurred.

16      In that regard, it contends, first, that the Council, whose Legal Service has genuine expertise in the field of anti-dumping measures, could, pursuant to the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, have assured its own defence in this case, which did not present any particular difficulties.

17      Secondly, it states that only the fees of one lawyer may be considered to have been necessarily incurred and that the costs of the second lawyer may be so considered only if the number of hours relating to the primary lawyer is limited, which is not the case here.

18      Thirdly, it asserts that the lawyers’ fees incurred in respect of coordination and communication with the Commission’s Legal Service were not necessarily incurred and that, consequently, they are not recoverable.

19      Fourthly, it submits that the claim for default interest to be added to the costs must be rejected as inadmissible, in so far as such interest cannot apply to a period prior to the order on taxation of those costs.
 Findings of the Court

 Admissibility

20      It should be noted that Article 145 of the Rules of Procedure of the Court of Justice does not make the submission of an application for taxation of costs subject to any time limit.

21      However, it is settled case-law of the Court that a claim for recovery of costs must be submitted to the party ordered to pay the costs within a reasonable period (order of 4 July 2013, Kronofrance v Germany and Others, C‑75/05 P–DEP and C‑80/05 P–DEP, not published, EU:C:2013:458, paragraph 14).

22      In the present case, it must be noted that, following the Court’s judgment of 18 October 2018, on 30 October 2018 the Council requested Gul Ahmed to reimburse its costs and that, since that company refused to accede to that request, the Council sent a new proposal to Gul Ahmed on 9 January 2020, before making the present application for taxation of costs to the Court on 11 June 2020.

23      It is apparent from that information that the Council took the necessary steps and made its application for taxation of costs within a period not exceeding the reasonable period beyond which it would have been justified to consider, first, that that institution had lost its right to recover the costs necessarily incurred for the purpose of the proceedings and, second, that Gul Ahmed could legitimately assume that the Council had waived its right.

24      The objection of inadmissibility must therefore be rejected.
 Substance

25      Under Article 144(b) of the Rules of Procedure of the Court of Justice, ‘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.

26      It 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 are 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 and the case-law cited).

27      Moreover, it is settled case-law, as appears from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, that the institutions are, as regards the manner in which they intend to be represented or assisted before the Court, free to decide whether they will have recourse to the assistance of a lawyer or to appoint as an agent either one of their officials or a person who is not a member of their staff. Such freedom is independent of the degree of difficulty of the case (order of 9 November 2016, ECB v von Storch and Others, C‑64/14 P–DEP, not published, EU:C:2016:846, paragraph 12 and the case-law cited).

28      It should also 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 and the case-law cited).

29      However, 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 and the case-law cited).

30      Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (order of 22 April 2020, Bilbaína de Alquitranes and Others v Commission, C‑691/15 P–DEP, not published, EU:C:2020:284, paragraph 40 and the case-law cited).

31      It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.

32      In the first place, as regards the purpose and the nature of the proceedings, it should be noted that the costs concerned by the present application for taxation were incurred in appeal proceedings. Such proceedings are limited to questions of law and do not concern findings as to the facts or the assessment of the facts of the dispute.

33      As regards, in the second place, the significance of the proceedings from the point of view of EU law and the difficulties presented by the case, it should be noted that the appeal brought by Gul Ahmed sought to have set aside the judgment of the General Court of 15 December 2016, Gul Ahmed Textile Mills v Council (T‑199/04 RENV, not published, EU:T:2016:740), by which the General Court dismissed Gul Ahmed’s action for annulment of Regulation No 397/2004.

34      In support of its appeal, Gul Ahmed relied on two grounds of appeal. The first, which was divided into four parts and alleged, inter alia, infringement of the obligation to state reasons and of Article 129 of the Rules of Procedure of the General Court, raised, in particular, the issue of the burden of proof of Gul Ahmed’s continuing interest in bringing proceedings in the context of the proceedings for annulment of Regulation No 397/2004. The second ground of appeal, which was in two parts, alleged a distortion of the facts which Gul Ahmed considered to be capable of calling into question the causal link between imports of bed linen originating in Pakistan and the material injury suffered by the EU industry.

35      It must be held that the first ground of appeal raised questions of law that were not covered by a single application of EU law, as interpreted by the Court, which, moreover, justified the allocation of Case C‑100/17 P to a Chamber of five Judges and the decision to have recourse to an Opinion. Consequently, it cannot be disputed that those issues required an in-depth analysis.

36      By contrast, as is apparent from paragraphs 62 to 80 of the judgment of 18 October 2018, Gul Ahmed Textile Mills v Council (C‑100/17 P, EU:C:2018:842), the second ground of appeal essentially concerned the findings of fact made by the General Court, including a distortion of those facts, and certain aspects of the causal link between the dumping and the injury suffered by the EU industry. Those issues did not present any particular difficulty.

37      As regards, in the third place, the amount of work carried out, it must, at the outset, be recalled that, when fixing the amount of the recoverable costs, the Court should 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 (order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P–DEP, not published, EU:C:2019:298, paragraph 28 and the case-law cited).

38      In that regard, first, as Gul Ahmed correctly observes, it must be held that the contacts between the Council’s lawyers and the Commission in order to coordinate the position of those two institutions were not necessary for the Council’s defence. In so far as such coordination was not requested by the Court, such expenses cannot be regarded as objectively necessary for the purpose of the proceedings.

39      Secondly, although it appears, in the light of the findings made in paragraphs 34 and 35 of the present order, that the drafting of the response by the Council’s lawyers and the preparation for the hearing in the appeal which gave rise to the judgment of 18 October 2018, Gul Ahmed Textile Mills v Council (C‑100/17 P, EU:C:2018:842), required an in-depth analysis, the resulting workload was not particularly significant, given the limited number of questions of law raised and the absence of any questions of fact at the appeal stage.

40      Furthermore, lawyers who claim to be highly qualified and very experienced in anti-dumping law and whose services are invoiced, as in the present case, at hourly rates of EUR 350 and EUR 270 are presumed to handle the cases entrusted to them, including those involving some complexity, efficiently and speedily (see, by analogy, order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P–DEP, not published, EU:C:2019:298, paragraph 31 and the case-law cited).

41      Moreover, the fact that the two lawyers instructed by the Council had represented that institution at first instance and had thus been able to acquire in-depth knowledge of that case necessarily had the effect of facilitating their work at the appeal stage and, in particular, of reducing the time required for drafting the response.

42      It follows that the 78.10 hours of work performed by the lawyers instructed by the Council in the appeal do not appear in their entirety to have been objectively necessary for the purpose of the proceedings, within the meaning of Article 144(b) of the Rules of Procedure of the Court of Justice.

43      In the fourth place, as regards the economic interests at issue in the proceedings, it should be noted that the Council, as a party to the proceedings, had a definite interest in Gul Ahmed’s appeal being dismissed. If the appeal had been upheld, the Court of Justice would have had to refer the case back to the General Court or rule on the case itself, with the risk, in either case, should Regulation No 397/2004 be annulled, of harmful consequences for the EU industry.

44      As regards, in the fifth place, Gul Ahmed’s request that the Council be ordered to pay the costs of the present taxation proceedings, it should be noted that, as is apparent from paragraph 30 of the present order, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs. Therefore, there is no need to rule separately on the expenses incurred for the purpose of the present proceedings. Consequently, that request cannot be granted.

45      In the light of the foregoing considerations, it is appropriate in the present case to fix the amount of lawyers’ fees objectively necessary to ensure the defence of the Council’s interests in the appeal proceedings and in the present taxation proceedings at EUR 15 000.

46      As regards disbursements other than lawyers’ fees, the Council claims sums of EUR 268.20 and EUR 413.72 in respect of travel and subsistence expenses incurred by its lawyer and its agent respectively in order to attend the hearing. Those amounts, which are not disputed by Gul Ahmed, do not appear disproportionate.

47      Lastly, the claim for default interest must be granted for the period from the date of service of the present order on taxation of costs to the date of actual payment of the costs. With regard to the applicable rate of interest, that must be calculated on the basis of the rate applied by the European Central Bank (ECB) to its main refinancing operations in force on the first day of the month in which payment is due, which is the date of service of this order, increased by three and a half percentage points (orders of 13 July 2017, Peek & Cloppenburg v Peek & Cloppenburg, C‑325/13 P–DEP, not published, EU:C:2017:556, paragraph 36, and of 10 April 2019, Giant (China) v EBMA, C‑61/16 P–DEP, not published, EU:C:2019:298, paragraph 39).

48      In the light of all the foregoing considerations, the recoverable costs may be assessed on an equitable basis at a total amount of EUR 15 681.92, to which shall be added default interest from the date of service of the present order until the date of payment of the total amount owed, at a rate equal to that applied by the ECB to its main refinancing operations in force on the first day of the month in which payment is due, increased by three and a half percentage points.
On those grounds, the Court (Tenth Chamber) hereby orders:

The total amount of the costs to be paid by Gul Ahmed Textile Mills Ltd to the Council of the European Union in respect of Case C‑100/17 P is fixed at EUR 15 681.92, to which shall be added default interest from the date of service of the present order until the date of payment of the total amount owed, at a rate equal to that applied by the European Central Bank (ECB) to its main refinancing operations in force on the first day of the month in which payment is due, increased by three and a half percentage points.

Luxembourg, 20 January 2021.

A. Calot Escobar
 
M. Ilešič

Registrar
 
      President of the Tenth Chamber

*      Language of the case: English.