PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (Taxation of costs - Order) [2019] EUECJ C-603/16P-DEP

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APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court, brought on 8 May 2019,

represented by P. Vander Schueren and D. Geraets, advocaten, and N. Mizulin, avocat,

Council of the European Union, represented by H. Marcos Fraile, acting as Agent,

composed of I. Jarukaitis, President of the Chamber, E. Juhász and C. Lycourgos (Rapporteur), Judges,

1 The subject matter of this action is the taxation of the costs incurred by PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia (together, ‘PT Wilmar’) in Case T‑603/16 P.

2 By an appeal brought on 24 November 2016, the Council of the European Union asked the Court, on the basis of Article 56 of the Statute of the Court of Justice of the European Union, to set aside the judgment of the General Court of the European Union of 15 September 2016, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (T‑139/14, not published, EU:T:2016:499), by which the General Court annulled Articles 1 and 2 of 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 they concerned PT Wilmar.

3 By e-Curia lodgment on 22 January 2018, the Council informed the Court, in accordance with Article 148 of the Rules of Procedure of the Court, that it was discontinuing its appeal.

4 By e-Curia lodgment of 1 February 2018, PT Wilmar informed the Court that it had no observations to make on that discontinuance, but that it was, however, seeking an order that the Council pay the costs.

5 By order of the President of the Court of 16 February 2018, Council v PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia (C‑603/16 P, not published, EU:C:2018:153), Case C‑603/16 P was removed from the register of the Court and, in accordance with the combined provisions of Article 141(1) and Article 184(1) of the Rules of Procedure, the Council was ordered to pay the costs incurred by PT Wilmar.

6 Since no agreement was reached between PT Wilmar and the Council as to the amount of the recoverable costs relating to the appeal proceedings, PT Wilmar, on the basis of Article 145 of the Rules of Procedure, has lodged the present application.

7 PT Wilmar requests the Court to set at EUR 55 577, together with late-payment interest, the amount of the recoverable costs to be paid by the Council.

8 The Council contends that that request should be rejected and that the recoverable costs should be set at the amount of EUR 9 050.

9 PT Wilmar submits that the appeal in Case C‑603/16 P concerned complex issues connected with anti-dumping duties. In particular, the first ground of that appeal, concerning, in essence, 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’), raised new issues and presented a high degree of difficulty and was of particular importance from the point of view of EU law in its entirety.

10 That is borne out by a number of complaints raised against the European Union before the World Trade Organisation (WTO) and the amendments to the EU legislation in the field of combating commercial dumping.

11 Thus, the appeal in Case C‑603/16 P raised a number of very complex questions of interpretation which needed to be examined carefully and which justified a heavy workload having regard, in addition, to the financial interest of the case for the applicants. In that regard, PT Wilmar submits that a total of 151.80 hours of work was reasonable and objectively essential for the preparation of the response to the appeal, the request for confidential treatment of certain elements in the application at first instance and the observations on the request for the joinder of a number of cases, including C‑603/16 P, lodged by the Council. Furthermore, costs amounting to EUR 1 000 have been incurred for the purposes of this taxation of costs procedure.

12 The Council is of the opinion that the number of hours of work claimed by PT Wilmar is excessive and that, for the purpose of the proceedings before the Court, the number of hours of work objectively necessary is 35 hours. It states that the majority of the arguments raised in the response to the appeal had already been raised in the administrative proceedings before the European Commission and in the action brought before the General Court, the same lawyers having represented the applicants.

13 The Council argues that 35 hours of work, carried out by a single lawyer and invoiced at an hourly rate of EUR 250, are objectively necessary to ensure the applicants’ defence in the appeal. In respect of the taxation of costs proceedings, it proposes a sum of EUR 300.

14 In that regard, the Council submits that the applicants’ lawyers were extremely specialised, that the case was not particularly complex, that two of the three written pleadings submitted to the Court contained no in-depth legal analysis and that no evidence has been adduced to show that the case was of unusual financial interest to the applicants.

15 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.

16 It is thus clear from the wording of that provision that the remuneration of a lawyer forms part of the necessary costs within the meaning thereof. 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).

17 In addition, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the delivery of the order on taxation of 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).

18 Furthermore, it must 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).

19 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 subject matter 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 financial interest that 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).

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

21 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).

22 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 is appropriate to note that the appeal brought by the Council in Case C‑603/16 P sought to have set aside the judgment under appeal, by which the General Court annulled Articles 1 and 2 of the contested regulation, in so far as those articles concerned PT Wilmar.

23 In support of its appeal, the Council put forward three grounds of appeal. The first ground of appeal alleged an incorrect interpretation of Article 2(5) of the basic regulation and an incorrect interpretation of the burden of proof on the institutions in the application of that provision. Since the second and third grounds of appeal alleged, first, an inadequate statement of reasons in the judgment under appeal and a distortion of the facts and, second, that the operative part of that judgment gave undue effects to the finding of illegality of Articles 1 and 2 of the contested regulation in so far as they concerned PT Wilmar.

24 It must be found that the first ground of appeal raised a novel point of law, one of a certain complexity requiring in-depth analysis. That ground of appeal concerned the interpretation, by the General Court, of Article 2(5) of the basic regulation, which laid down, in essence, the various possibilities on the basis of which the EU institutions could take into account the costs associated, in particular, with the production and sale of a product under consideration, for the purpose of calculation of the normal value of the like product, within the meaning of that regulation.

25 Specifically, the Council argued that the General Court had, in essence, applied an incorrect legal criterion to determine the conditions which must be satisfied to disregard, in the calculation of the normal value of the like product, within the meaning of that regulation, the prices of palm oil in the records of the relevant Indonesian exporters. In particular, the Council complained that the General Court had incorrectly applied the judgment of 7 February 2013, Acron and Dorogobuzh v Council (T‑235/08, not published, EU:T:2013:65). In so doing, in the view of the Council, the General Court infringed Article 2(5) of the basic regulation and placed an inappropriate burden of proof on the EU institutions.

26 It follows that that first ground of appeal was not a matter of a mere application of EU law, as interpreted by the Court of Justice, and that it required an in-depth analysis inasmuch as the question of law that it raised, concerning the interpretation of Article 2(5) of the basic regulation, would have led the Court to rule, in particular, on the discretion enjoyed by the EU institutions in the context of the calculation of the normal value of the like product, within the meaning of that regulation.

27 As regards, however, the second and third grounds of appeal, it is clear that they were not particularly complex.

28 With regard, in the third place, to the amount of work carried out, it must 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 (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).

29 In that regard, although it appears, having regard to the above findings, that the drafting, by PT Wilmar’s lawyers, of the response to the appeal lodged by the Council required an in-depth analysis of the first ground of appeal, the view cannot be taken that the corresponding workload was particularly great, since the drafting of that pleading required the examination only of a limited number of legal questions and that questions of fact were not raised at the appeal stage. Similarly, the preparation of confidential and non-confidential versions of PT Wilmar’s application at first instance could not have involved an appreciable workload since the items to be treated as confidential had, mostly, already been treated as confidential at first instance and, in any event, it was a matter only of redacting some items in five paragraphs of the application, since, furthermore, the grounds stated in support of the request for confidential treatment were very succinct. The same is true of the observations on the request for joinder of a number of cases made by the Council, since the redaction of those observations cannot have given rise, in Case C‑603/16 P, to any particular difficulties.

30 Furthermore, lawyers who claim to be highly qualified and very experienced in anti-dumping law and whose services are invoiced at average hourly rates of between EUR 295 and EUR 550 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).

31 In that regard, the lawyers instructed by PT Wilmar had already been able to gain in-depth knowledge of the case at issue during both the administrative proceedings before the Commission and the proceedings before the General Court, since they had already represented the company in both those proceedings, which must not only have facilitated their work but also reduced the time required to study the appeal and draft the response.

32 It follows that the 151.80 hours of work performed by the lawyers instructed by PT Wilmar 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.

33 In the fourth place, as regards the economic interests at issue in the dispute, it should be noted that PT Wilmar had a definite interest in the Council’s appeal being dismissed. By that appeal, the Council asked the Court of Justice to set aside the judgment under appeal, by which the General Court had annulled Articles 1 and 2 of the contested regulation, in so far as those articles concerned PT Wilmar. 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 PT Wilmar (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).

34 In the fifth place, as regards the sum of EUR 1 000 claimed by PT Wilmar in respect of the conduct of the present taxation of costs proceedings, it must be noted that an application for taxation of costs is largely standardised and, in principle, does not present any difficulties (order of 14 June 2017, CPVO v Schräder, C‑546/12 P-DEP, not published, EU:C:2017:460, paragraph 28).

35 PT Wilmar’s financial claim appears, for that reason, to be disproportionate and cannot, at least in its entirety, be accepted as costs objectively necessary for the purposes of the present proceedings.

36 Having regard to all the foregoing considerations, a fair assessment of the costs recoverable in Case C‑603/16 P and those recoverable in the present taxation proceedings is achieved by fixing their total amount at EUR 15 000.

The total amount of the costs to be paid by the Council of the European Union to PT Wilmar Bioenergi Indonesia and to PT Wilmar Nabati Indonesia, in Case C‑603/16 P, is fixed at EUR 15 000.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (Taxation of costs - Order) [2019] EUECJ C-603/16P-DEP_CO (04 December 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C60316PDEP_CO.html Cite as: ECLI:EU:C:2019:1040, [2019] EUECJ C-603/16P-DEP_CO, EU:C:2019:1040

Court of Justice of the European Communities (including Court of First Instance Decisions)