T-226/00

Cases T-226/00 DEP and T-227/00 DEP Nan Ya Plastics Corporation and Far Eastern Textiles Ltd v Council of the European Union «(Taxation of costs) » Order of the Court of First Instance (Fifth Chamber, Extended Competition), 6 March 2003      Summary of the Order 1.. Procedure – Costs – Taxation – Recoverable costs (Rules of Procedure of the Court of First Instance, Art. 91(b)) 2.. Procedure – Costs – Taxation – Factors to be taken into account (Rules of Procedure of the Court of First Instance, Art. 91(b) 3.. Procedure – Costs – Taxation – Recoverable costs – Definition – Involvement of more than one lawyer (Rules of Procedure of the Court of First Instance, Art. 91(b) 1. It follows from Article 91(b) of the Rules of Procedure of the Court of First Instance that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Community judicature and, second, to those which were necessary for that purpose. see para. 33 2. The Community judicature 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 the application for taxation of costs, the Community judicature is not obliged to take account of any national scales of lawyers' fees or any agreement in relation to fees concluded between the party concerned and his agents or advisers. Since there are no Community provisions laying down fee-scales, the Court must make an unfettered assessment of the facts of the case, taking into account the subject-matter 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 interests which the parties had in the proceedings. In that respect, the ability of the Community judicature to assess the value of work carried out is dependent on the accuracy of the information provided. see paras 34-35 3. So far as concerns determination of the recoverable costs, the primary consideration of the Community judicature is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question. see para. 44 ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition) 6 March 2003 (1) ((Taxation of costs)) In Cases T-226/00 DEP and T-227/00 DEP, Nan Ya Plastics Corporation, established in Taipei, Taiwan (China),Far Eastern Textiles Ltd, established in Taipei,represented by P. De Baere, lawyer, with an address for service in Luxembourg, applicants, v Council of the European Union, represented by S. Marquardt, acting as Agent, assisted by G. Berrisch, lawyer, defendant, APPLICATION for taxation of the costs to be paid by the defendant to the applicants following the orders made by the Court of First Instance on 19 September 2001 in Case T-226/00 Nan Ya Plastics v Council and Case T-227/00 Far Eastern Textiles v Council, not published in the ECR, THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber, Extended Composition), composed of: R. García-Valdecasas, President, P. Lindh, R.M. Moura Ramos, J.D. Cooke and H. Legal, Judges, Registrar: H. Jung, makes the following Order Facts and procedure On 8 May 2000, the Council adopted Regulation (EC) No 978/2000 imposing a definitive countervailing duty on imports of synthetic fibres of polyester originating in Australia, Indonesia and Taiwan and collecting definitively the provisional duty imposed (OJ 2000 L 113, p. 1, the contested regulation). By applications lodged at the Court Registry on 28 August 2000, Nan Ya Plastics Corporation and Far Eastern Textiles Ltd brought actions, registered under numbers T-226/00 and T-227/00 respectively, seeking the annulment of Articles 1 and 2 of the contested regulation. By letter of 22 September 2000, the Council requested an extension of the time-limit for lodging its defence in view, in particular, of the complexity of the questions of law and fact raised in the applications and the size of the annexes to them. The Court granted that request. Before it produced its statements in defence, the Council lodged a request for a stay of proceedings in the two cases on the ground that it intended to adopt a regulation retrospectively amending the contested regulation. The applicants informed the Court that they had no objection to such a request. By orders of 23 November 2000, the President of the Fifth Chamber, Extended Composition, of the Court of First Instance ordered proceedings to be stayed in Cases T-226/00 and T-227/00. On 7 May 2001 the Council adopted Regulation (EC) No 902/2001 amending Regulation No 978/2000 (OJ 2001 L 127, p. 20). By orders of 19 September 2001 (not published in the ECR), at the request of the Council and with the agreement of the applicants, the Court held that there was no need to adjudicate on applications T-226/00 and T-227/00 and ordered the Council to pay the costs. Since the parties were not able to reach agreement on the amount of costs to be paid, the applicants, by document lodged at the Court Registry on 10 July 2002 in accordance with Article 92(1) of the Rules of Procedure of the Court of First Instance, made a joint application for taxation of costs in respect of both cases. That application was registered at the Court Registry under numbers T-226/00 DEP and T-227/00 DEP. By document lodged at the Court Registry on 11 September 2002, the Council submitted its observations on that application. Forms of order sought The applicants claim that the Court should fix the amount of costs payable by the Council at EUR 74 368.06. The Council contends that the Court should fix the amount of recoverable costs, including the costs of the taxation proceedings, as it sees fit but not exceeding EUR 30 000. Law Arguments of the parties The applicants consider that the amount of costs claimed is justified, first, by the subject-matter and nature of the dispute and by the significance of the case from the point of view of Community law. The dispute raises important issues of Community law which have not yet been addressed by the Community judicature. The applicants state that the cases in question concerned the scope of the Commission's powers of investigation and the rights of the defence in anti-subsidy proceedings as well as the application of Article 3 of Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community (OJ 1997 L 288, p. 1), in particular the application of the condition laid down in that article that measures must be specific. Secondly, with regard to the extent of the work required by the cases in question, the applicants submit that they involved a number of difficulties. In the absence of Community case-law, they were forced to argue by drawing analogies from competition law and anti-dumping law regarding the rights of the defence and the scope of the Commission's powers of investigation, and from United States law and the law of the World Trade Organisation (WTO) regarding the application of the condition that measures be specific within the meaning of Article 3 of Regulation No 2026/97. The application of that condition in the cases in question required an analysis of complex economic and legal data. The applicants also point out that it is clear from the Council's request for an extension of time for lodging the defence and from the fact that it was assisted by a lawyer that the Council acknowledges the difficulty of the cases. Thirdly, the applicants state that the matter required a great deal of work on the analysis of complex legal and economic data. They state that the main work of research and drafting was charged only once and explain that, if only one application had been lodged, the cost would have been less but would not have been halved. The lodging of a second application required additional administrative organisation on account of the specific nature of the facts relating to it and the differences in the legal arguments of each of the applicants, in particular with regard to Far Eastern Textiles' locus standi. Finally, the applicants state that bringing the actions required not only duplication of the work done during the administrative procedure but also the development of arguments answering the statements made in the contested regulation and a search for new evidence and new arguments. Fourthly, the financial interests at stake were particularly significant for the applicants since success in their actions would have led to the repeal of the definitive countervailing duty of 1.52% on imports of Nan Ya Plastics and of 1% on imports of Far Eastern Textiles. During the investigation period, the sales value of imports of Nan Ya Plastics into the Community was TWD (New Taiwan Dollars) 454 577 000 and that of Far Eastern Textiles TWD 841 851 126. The duties thus amounted to TWD 15 328 081 per annum. Since the countervailing duties were imposed for a period of five years, the total amount of duty levied amounts to TWD 76 640 407, or EUR 2 450 124.52 at the rate of exchange on 1 January 2002. The applicants therefore claim that the Court should order payment of EUR 74 368.06, on the basis of an invoice of EUR 74 395.21 representing the fees of seven lawyers totalling EUR 69 060 (333 hours and 30 minutes of work at an hourly rate of EUR 125 to EUR 275) and photocopying, telecommunications and courier services costs amounting to EUR 5 335.21. The Council contends, first, that the significance of the case from the point of view of Community law should not be overstated. Although the case raises a number of general questions on the application of Regulation No 2026/97, most of the issues concerned strictly the facts. Secondly, as regards the difficulties raised by the case, it must be borne in mind that the case was preceded by an administrative investigation in which the legal adviser to the applicants was involved. The absence of relevant case-law did not necessarily render the handling of the case more complicated inasmuch as it relieved the applicants from evaluating and analysing a complex body of case-law. As for the work of researching United States and WTO law, that is neither unusual nor particularly difficult in trade law matters. Next, the Council does not deny that the case required an analysis of complex legal and economic data and of various national schemes. However, the applicants and their lawyers had already undertaken that analysis during the administrative proceedings and they would have been familiar with those matters when preparing the applications. Finally, the Council states that, for many years, it has engaged a lawyer to handle most of the anti-dumping and subsidy cases, irrespective of their difficulty or complexity. Thus its request for an extension of the time-limit for lodging the defence is not evidence of the complexity of the cases but was justified by the fact that, as the Council's lawyer had not been involved in the administrative procedure, all the issues dealt with were completely new to him. Thirdly, the Council submits that the applicants exaggerate the amount of work generated by the case. The number of hours spent by the two main lawyers for the applicants on preparing the applications and by other lawyers on research is clearly excessive. The Council acknowledges that the amount claimed relates to the work carried out for both applications and that it would have been impossible to apportion it between them. It nevertheless submits in that regard that it is of no relevance to determine whether or not the two applications were totally identical. Moreover, the applicants' lawyers were involved in the administrative investigation and were therefore already familiar with the relevant issues of fact and of law. Furthermore, almost all the substantive arguments raised in the two applications had already been submitted, in one form or another, during that investigation. Next, the Council disputes the applicants' assertion that the actions did not lead to the annulment of the contested regulation but to its repeal, which necessitated the search for new evidence and arguments different from those used during the administrative procedure. If the applicants wished to rely on allegedly new arguments submitted in the applications in order to justify the workload entailed by them, they should have identified those arguments and not relied on circumstantial evidence. The applicants' allegation is misleading in that it leads to the assumption that the Council repealed the contested regulation because they raised a new argument in their applications which they were only able to submit following time-consuming and detailed research. However, the contested regulation was repealed as a result of the adoption of a subsequent regulation introducing a different method for calculating the amount of countervailable subsidies with respect to one of the Taiwanese subsidy schemes. Since the subsidies were found to be de minimis for Taiwan, it was decided to repeal the countervailing measures imposed under the contested regulation on imports from Taiwan. In that regard, the Council does not deny that the applicants had suggested the new calculation method in their application but points out, however, that they had already submitted this argument in their comments of 10 January 2000 on the Commission's preliminary disclosure letter. Finally, the Council states that its lawyer spent approximately 80 hours on those cases although he had not been involved in the administrative investigation and was therefore obliged to familiarise himself with the case. Moreover, he had already begun to draft a defence answering 75% of the applicants' arguments. Fourthly, the Council considers that it cannot comment on the calculation of the financial interests at stake, but submits that their importance should not be overstated. Finally, the Council considers that the breakdown of costs is inadequate. It merely mentions the names of the lawyers involved, the general type of work they did (research, drafting, reviewing, communication with client) and how much time each of them apparently spent on preparing the applications, without indicating precisely what work was carried out, how much time was spent on the different types of work or when it was carried out. The Council also objects to the amount charged as expenses for photocopies, telecommunications and courier services, which is excessive and put forward without any justification for the calculation of its amount. The Council therefore submits that an amount of EUR 30 000, including the costs associated with the present proceedings, is appropriate and requests that the amount of the costs claimed be reduced by 60%, as was the case in the order of the Court of First Instance in Case T-115/94 DEP Opel Austria v Council [1998] ECR II-2739. Findings of the Court Under Article 92(1) of the Rules of Procedure of the Court of First Instance: 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. According to Article 91(b) of the Rules of Procedure of the Court of First Instance, 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 to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court of First Instance and, second, to those which were necessary for that purpose (orders of the Court of First Instance in Case T-38/95 DEP Groupe Origny v Commission [2002] ECR II-217, paragraph 28, and Case T-171/00 DEP Spruyt v Commission, not published in the ECR, paragraph 22). According to settled case-law, the Community judicature 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 the application for taxation of costs, the Court is not obliged to take account of any national scales of lawyers' fees or any agreement in relation to fees concluded 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; Opel Austria v Council, cited above, paragraph 27; and Case T-64/99 DEP UK Coal v Commission [2001] ECR II-2547, paragraph 26). It is also settled case-law that, since there are no Community provisions laying down fee-scales, the Court must make an unfettered assessment of the facts of the case, taking into account the subject-matter 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 interests which the parties had in the proceedings (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, cited above, paragraph 28; and UK Coal v Commission, cited above, paragraph 27). In that respect, the ability of the Community judicature to assess the value of work carried out is dependent on the accuracy of the information provided (order of the Court of Justice of 9 November 1995 in Case C-89/85 DEP Ahlström and Others v Commission, not published in the ECR, paragraph 20, and the order in Stahlwerke Peine-Salzgitter v Commission, cited above, paragraph 31). The amount of costs recoverable in the present case must be assessed in the light of those criteria. So far as concerns the difficulties presented by the cases and their significance from the point of view of Community law, it is clear that they raised new and/or intricate points relating to the rights of defence of the applicants and the scope of the Commission's powers of investigation in the context of anti-subsidy proceedings as well as the interpretation of the requirement that measures be specific within the meaning of Article 3 of Regulation No 2026/97. The matters at issue have therefore called for an analysis of complex economic and legal questions, as the Council acknowledges, which have been considered by the applicants' lawyers. In that respect, it must moreover be pointed out that, despite its contention, its letter of 22 September 2000 shows that the Council justified its request for an extension of the time-limit for lodging its defence in particular by reference to the complexity of the legal and factual questions raised in the applications and the size of the annexes to them. So far as concerns the extent of the work involved in the proceedings before the Court, it follows from the foregoing considerations that the dispute may indeed have required a significant amount of work by the applicants' lawyers. In that respect, it cannot be accepted, as the Council claims, that the absence of case-law on the relevant provisions of Regulation No 2026/97 was likely to facilitate their work. Moreover, it must be pointed out that Regulation No 902/2001 amending the contested regulation was adopted after the applicants brought their actions in Cases T-226/00 and T-227/00, as is clear from the second recital in its preamble. However, first, it must be stated that the written procedure in Cases T-226/00 and T-227/00 amounts merely to the lodging of the two applications initiating proceedings and brief exchanges concerning a stay of proceedings and the need to adjudicate in those cases, and that the cases did not give rise to an oral procedure. Secondly, since the actions are related, the two applications are broadly similar. Furthermore, the applicants' lawyers were already familiar with the cases, having represented the applicants in the administrative procedure which resulted in the adoption of the contested regulation. The applicants had also already put forward, during the administrative procedure, some of the legal arguments which they submitted before the Court. Those considerations are likely to have, in part, facilitated their work and reduced the time which they had to spend on the preparation of the applications (order of the Court of First Instance in Case T-65/96 DEP Kish Glass v Commission [2001] ECR II-3261, paragraph 25). It must also be pointed out that the primary consideration of the Court is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (orders of the Court of First Instance in Case T-290/94 DEP Kaysersberg v Commission [1998] ECR II-4105, paragraph 20, and Case T-337/94 DEP Enso-Gutzeit v Commission [2000] ECR II-479, paragraph 20). So far as concerns the financial interests which the applicants have in the case, it must be observed that the Council does not deny that it was significant. Following the foregoing analysis, it is apparent that the nature and the interest of the present dispute justify a high level of fees. The number of hours of work invoiced appears nevertheless to be excessive, particularly since the fee note submitted by the applicants does not contain sufficient information to enable an assessment of whether the number of hours' worked is justified. As regards, moreover, the claim for EUR 5 335.21 in respect of the cost of photocopies, telecommunications and courier services, the Court finds that, as there is no detailed information concerning the break down of that amount by reference to the indicated items of expenditure, the amount is insufficiently substantiated. In view of the foregoing, the Court will make an equitable assessment of the costs recoverable by the applicants in Cases T-226/00 and T-227/00 by fixing the amount at EUR 43 000. Since that amount takes account of all the circumstances of the case up to the date of this order, there is no need to give a separate ruling on the costs incurred by the parties in relation to these proceedings for the taxation of costs (order in Groupe Origny v Commission, cited above, paragraph 44). On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition), hereby orders: The amount of costs to be paid by the Council to the applicants in Cases T-226/00 and T-227/00 is fixed at EUR 43 000. Luxembourg, 6 March 2003. H. Jung R. García-Valdecasas Registrar President – Language of the case: English.