CELEX: 62016CO0061
Language: en
Date: 2019-04-10 00:00:00
Title: Order of the Court (Ninth Chamber) of 10 April 2019.#Giant (China) Co. Ltd v European Bicycle Manufacturers Association (EBMA).#Taxation of costs.#Case C-61/16 P-DEP.

ORDER OF THE COURT (Ninth Chamber)
10 April 2019 (*)
(Taxation of costs)
In Case C‑61/16 P-DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court, brought on 18 October 2018,

Giant (China) Co. Ltd, established in Kunshan (China), represented by P. De Baere, lawyer,
applicant,
v

European Bicycle Manufacturers Association (EBMA),

defendant,
THE COURT (Ninth Chamber),
composed of K. Jürimäe (Rapporteur), President of the Chamber, D. Šváby and  N. Piçarra, Judges,
Advocate General: G. Pitruzzella,
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 Giant (China) Co. Ltd (‘Giant’) in Case T‑61/16 P.

2        By an appeal lodged on 4 February 2016, the European Bicycle Manufacturers Association (‘the EBMA’) requested the setting aside of the judgment of the General Court of the European Union of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896), by which that court annulled Council Regulation (EU) No 502/2013 of 29 May 2013 amending Implementing Regulation (EU) No 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2013 L 153, p. 17), in so far as it concerned Giant. By its judgment of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968), the Court dismissed the appeal and ordered the EBMA to pay the costs incurred by Giant.

3        As Giant and the EBMA failed to reach agreement as to the recoverable costs relating to those proceedings, Giant, acting pursuant to Article 145 of the Rules of Procedure of the Court of Justice, requested the Court of Justice to give a decision as to costs.
 Forms of order sought by the parties 

4        By letter of 12 January 2018, Giant asked the EBMA for payment of a total amount of EUR 104 478.03 in respect of costs incurred by Giant in Case C‑61/16 P.

5        By letter of 30 August 2018, the EBMA refused to pay that amount, taking the view that it was excessive.

6        By letter of 20 September 2018, Giant informed the EBMA that it maintained its request for payment of its costs incurred in Case C‑61/16 P. However, Giant agreed to a reduction of EUR 295 in the amount claimed in respect of disbursements.

7        Giant requests the Court to fix the amount of recoverable costs at EUR 104 183.96. That amount corresponds to the expenses necessarily incurred for the purpose of the appeal proceedings, in particular lawyers’ fees corresponding to 326.5 hours of work.

8        Giant requests, in addition, that this amount be increased by interest 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, increased by three and a half percentage points, from the date of this order.

9        EBMA has not submitted observations to the Court.
 Arguments of the parties

10      In support of its application, Giant argues, first, that the case at issue raised questions of considerable complexity, which justified its lawyers devoting a significant number of hours of work to it.

11      First of all, Giant submits that it was obliged to undertake an in-depth analysis of the question of the admissibility of the appeal, as the EBMA had raised a large number of complex legal arguments seeking, in essence, to present findings of fact as issues of law on which its appeal could be based.

12      Next, Giant maintains that the pleas raised by the EBMA raised new questions of law concerning the extent of the cooperation which could be asked of the parties in the context of an anti-dumping investigation, the relevance of the structural and commercial relationship between the companies, the imposition of individual duty on the companies within a group and the risk of circumvention of anti-dumping measures in the case of related companies.

13      Moreover, Giant is of the view that the fact that the Court sent questions to the parties before the hearing and the fact that Case C‑61/16 P was considered with an Opinion demonstrate the novelty and the complexity of the legal issues raised in this case.

14      Finally, Giant submits that, by their nature, cases concerning the imposition of anti-dumping measures raise complex and highly technical economic, legal and factual issues. Giant notes in that regard that the proceedings before the Court in Case C‑61/16 P lasted approximately two years, thus exceeding by several months the average time taken to deal with an appeal.

15      In the second place, Giant argues that the number of lawyers involved in its representation before the Court was justified in view of the complexity of Case C‑61/16 P. In that regard, Giant states that although five lawyers worked on the case during the proceedings, only two lawyers, namely a partner and an assistant, have been assigned to the case throughout the proceedings, the other three lawyers having carried out only very limited ancillary tasks.

16      In the third place, according to Giant, the average hourly rate of EUR 315.50 charged by its lawyers is an appropriate rate well below hourly rates which have been accepted by the General Court and by the Court of Justice in similar cases.

17      In the fourth place, Giant submits that the presence of two lawyers at the hearing before the Court in Case C‑61/16 P was necessary. Accordingly, it claims the reimbursement of EUR 1 221.46 as travel costs and subsistence in Luxembourg incurred by its two lawyers in order to participate in the hearing.
 Findings of the Court 

 The costs relating to the appeal proceedings

18      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 regarded as recoverable costs.

19      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 5 December 2018, TV2/Danmark  v Viasat Broadcasting UK, C‑657/15 P-DEP, not published, EU:C:2018:985, paragraph 13).

20      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 26 September 2018, Viasat Broadcasting UK  v  TV2/Danmark,  C‑660/15 P-DEP, not published, EU:C:2018:778, paragraph 21).

21      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 5 December 2018, TV2/Danmark  v  Viasat Broadcasting UK, C‑657/15 P-DEP, not published, EU:C:2018:985, paragraph 15).

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

23      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 (order of 15 October 2015, Council v Ningbo Yonghong Fasteners, C‑601/12 P-DEP, not published, EU:C:2015:726, paragraph 19).

24      As regards, in the second place, the significance of the dispute from the point of view of EU law and the difficulties presented by the case, it should be observed that the appeal brought by the EBMA sought to have set aside the judgment of the General Court of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896), by which the General Court annulled Regulation No 502/2013 in so far as it concerned Giant.

25      In support of its appeal, the EBMA put forward three grounds of appeal. The first and second grounds alleged, in particular, an erroneous interpretation and application of Article 18(1) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 343, p. 51, and corrigendum OJ 2010 L 7, p. 22). Those grounds have, in essence, led the Court to rule on the discretion which the EU institutions have, in the context of an anti-dumping investigation, to determine the information which they regard as necessary for the purposes of that investigation.  The third ground of appeal alleges an error of law, in that the General Court took the view that the Council of the European Union was not entitled to invoke a risk of circumvention as justification for the refusal to impose an individual anti-dumping duty on Giant.

26      It must be held that the first and second grounds raised novel questions of law, which were not covered by a single application of EU law, as interpreted by the Court, which, moreover, justified the allocation of Case C‑61/16 P to a Chamber of five Judges and the fact that the Court has ruled with an Opinion. In consequence, it cannot be disputed that those questions required an in-depth analysis (see, to that effect, order of 30 January 2014, Éditions Odile Jacob v Commission and Lagardère, C‑553/10 P-DEP and C‑554/10 P-DEP, EU:C:2014:56, paragraph 28).

27      However, on the one hand, as is apparent from paragraphs 33 to 37 of the judgment of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968), contrary to the assertions of Giant, the issue of the admissibility of the appeal brought by the EBMA was not particularly complex. On the other hand, the third ground did not present any particular complexity either, given that its first and third parts were dismissed by the Court as unfounded, for reasons relating, respectively, to the incorrect premiss on which the EBMA based its arguments and the fact that certain factors on which the General Court relied in reaching the disputed finding were not contested.

28      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 3 September 2009, Industrias Químicas del Vallés v Commission, C‑326/05 P-DEP, not published, EU:C:2009:497, paragraph 48).

29      Thus, it must be examined whether the 326.5 working hours that Giant’s advisers devoted to the defence of their client in the appeal proceedings appear to have been ‘necessarily incurred ... for the purpose of the proceedings’ within the meaning of Article 144(b) of the Rules of Procedure.

30      Although it appears, in the light of the findings made in paragraphs 25 and 26 of the present order, that the drafting by Giant’s lawyers of the defence and the rejoinder and the preparation of the hearing of the appeal which gave rise to the judgment of 14 December 2017, EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968) required an in-depth analysis, the workload involved was not particularly heavy, given that they required consideration of only a limited number of points of law and that matters of fact did not arise at the appeal stage.

31      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 of EUR 315.50 are presumed to handle the cases entrusted to them, including those involving some complexity, efficiently and speedily (see, to that effect, order of 3 October 2018, Orange v Commission, C‑486/15 P-DEP, not published, EU:C:2018:824, paragraph 37).

32      In that regard, the lawyers instructed by Giant had already been able to acquire in-depth knowledge of the case in question during the proceedings before the General Court. At least one of Giant’s advisers, Mr De Baere, already had a thorough knowledge of the case, given that he had represented the company at first instance, which must not only have facilitated the work but also reduced the time needed to study the appeal and draft the response.

33      Furthermore, it is apparent from the case-law of the Court that the lawyers’ fees relating to a period subsequent to the oral procedure before the Court cannot be classified as expenses necessarily incurred for the purposes of the proceedings (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 44). Accordingly, it is not appropriate to take into account the hours devoted to the examination of the Advocate General’s Opinion and the judgment of the Court and to the discussion with the client concerning them.

34      It follows that the 326.5 hours of work performed by the lawyers instructed by Giant 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.

35      In the fourth place, as regards the economic interests at issue in the dispute, it should be noted that Giant had a definite interest in the EBMA’s appeal being dismissed. Indeed, by its appeal, the EBMA requested the Court to set aside the judgment of the General Court of 26 November 2015, Giant (China) v Council (T‑425/13, not published, EU:T:2015:896), by which the latter annulled Regulation No 502/2013 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China, in so far as it concerned Giant. However, the fact remains that no evidence was submitted to the Court to indicate that the case presented an economic interest of an unusual nature for Giant (see, to that effect, order of 15 October 2015, Council v Ningbo Yonghong Fasteners, C‑601/12 P-DEP, not published, EU:C:2015:726, paragraph 23).

36      In the light of the foregoing considerations, it is appropriate, in this case, to fix the amount of recoverable lawyers’ fees at EUR 45 000.

37      As regards disbursements other than the lawyers’ fees, Giant claims the amount of EUR 1 221.46 as travel costs and subsistence in Luxembourg incurred by its two lawyers in order to attend the hearing before the Court. That amount is not accompanied by the necessary supporting documents, and cannot therefore constitute an amount recoverable under those disbursements (see, to that effect, order of 16 May 2013, Deoleo v Aceites del Sur-Coosur, C‑498/07 P-DEP, not published, EU:C:2013:302, paragraph 34).

38      Having regard to all the foregoing considerations and to the criteria set out in paragraph 21 of the present order, a fair assessment of the disbursements recoverable from the EBMA by Giant in relation to the proceedings in Case C‑61/16 P will be made by fixing their total amount at the sum of EUR 45 000.
 Default interest

39      The claim for default interest must be upheld for the period from the date of service of the present order for taxation of costs to the date of effective recovery of those costs. With regard to the applicable rate of interest, that must be calculated on the basis of the rate applied by the 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 (see, to that effect, order of 14 January 2016, Commission v Marcuccio, C‑617/11 P-DEP, not published, EU:C:2016:17, paragraph 12).
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The total amount of costs which the European Bicycle Manufacturers Association (EBMA) must pay to Giant (China) Co. Ltd in respect of Case C‑61/16 P shall be fixed at the sum of EUR 45 000.

2.      That amount shall bear interest 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, which is the date of service of this order, increased by three and a half percentage points, to run from that date until payment in full of the costs.

Luxembourg, 10 April 2019.

A. Calot Escobar
 
K. Jürimäe

Registrar
 
President of the Ninth Chamber

*      Language of the case: English.