Unitec Bio and Others v Council (Taxation of costs - Order) [2019] EUECJ C-602/16P-DEP

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In Joined Cases C‑602/16 P‑DEP and C‑607/16 P‑DEP to C‑609/16 P‑DEP,

APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court, brought on 28 June 2019,

Oleaginosa Moreno Hermanos Sacifi y A, established in Bahia Blanca (Argentina),

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 present case concerns the taxation of the costs incurred by Unitec Bio SA, Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos Sacifi y A, Vicentin SAIC, Aceitera General Deheza SA, Bunge Argentina SA, Cámara Argentina de Biocombustibles (Carbio), Cargill SACI, and LDC Argentina SA (together, ‘Unitec Bio and Others’) in Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P.

2 By four appeals lodged on 24 November 2016, the Council of the European Union, pursuant to Article 56 of the Statute of the Court of Justice of the European Union, sought to have set aside the judgments of the General Court of the European Union of 15 September 2016, Unitec Bio v Council (T‑111/14, EU:T:2016:505), of 15 September 2016, Molinos Río de la Plata and Others v Council (T‑112/14 to T‑116/14 and T‑119/14, not published, EU:T:2016:509), of 15 September 2016, Cargill v Council (T‑117/14, not published, EU:T:2016:503), and of 15 September 2016, LDC Argentina v Council (T‑118/14, not published, EU:T:2016:502) (together, ‘the judgments under appeal’), 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 Unitec Bio and Others. However, the action brought by Cámara Argentina de Biocombustibles (Carbio) was dismissed in part as inadmissible.

3 By decision of the President of the Court of Justice of 3 April 2017, Cases C‑602/16 P and C‑607/16 P to C‑609/16 P were joined for the purposes of the oral procedure and of the judgment.

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

5 By document lodged via e-Curia on 2 February 2018, Unitec Bio and Others informed the Court of Justice that they had no comments to make on that withdrawal, but nonetheless requested that the Council be ordered to pay the costs.

6 By order of the President of the Court of Justice of 15 February 2018, Council v Unitec Bio and Others (C‑602/16 P and C‑607/16 P to C‑609/16 P, not published, EU:C:2018:150), Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P were removed from the Register of the Court of Justice 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 Unitec Bio and Others.

7 As no agreement was reached between Unitec Bio and Others and the Council on the amount of recoverable costs relating to the appeal proceedings, Unitec Bio and Others have, pursuant to Article 145 of the Rules of Procedure, brought the present application.

8 Unitec Bio and Others request that the Court of Justice fix the amount of recoverable costs to be paid by the Council at EUR 64 525, to be increased by default interest, and order that institution to pay a sum of EUR 1 548 in respect of costs incurred for the conduct of the present taxation of costs proceedings.

9 The Council contends that that request be rejected and that the total amount of recoverable costs be fixed at EUR 11 550.

10 In the first place, as regards the period to which the recoverable costs relate, Unitec Bio and Others argue that the various amounts invoiced relate only to the services provided during periods falling within the scope of Article 144 of the Rules of Procedure as applied by the Court of Justice.

11 In the second place, as regards the number of hours worked for the purpose of handling the appeals in Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P, Unitec Bio and Others request the reimbursement of a total revised amount of recoverable costs corresponding to 187.5 hours for the proceedings before the Court of Justice, which, in the light of both the complexity of the issues raised in those cases and the recent case-law of the Court of Justice, is by no means unreasonable.

12 First, Unitec Bio and Others argue, in essence, that a number of arguments raised in the judicial proceedings and, in particular, in the appeals before the Court of Justice had not been discussed in the administrative phase, in particular an important argument, raised in their defences, concerning the admissibility of the Council’s appeals.

13 Second, Unitec Bio and Others consider that those cases involved several highly complex matters, which raised several novel and highly important issues which had not been previously addressed by EU courts. The judgments under appeal are of systemic importance for future anti-dumping investigations and of relevance for EU law as a whole. The significance of those cases as a matter of significant contribution to EU law is also highlighted by the fact that the appeals by the Council before the Court of Justice were assigned to the Grand Chamber.

14 Third, the task of Unitec Bio and Others was further complicated by the fact that the arguments made by the Council in its appeals were complex and not always easy to comprehend.

15 Fourth, Unitec Bio and Others state that the Court of Justice addressed to the parties complex questions and, in particular, a very important and delicate question with potentially far-reaching consequences for the application in all future cases 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’), leading Unitec Bio and Others to prepare an extensive reply that was 12 pages in length.

16 Fifth, Unitec Bio and Others state that their financial interests in the judicial proceedings were exceptionally high, that is, in excess of EUR 1.2 billion per year, representing around EUR 6 billion in total if the anti-dumping measures adopted by the Council had remained in place during their initial 5-year term.

17 In the third place, Unitec Bio and Others maintain, in essence, that the bulk of the work was performed by only two lawyers, a partner and a senior associate, which was not unreasonable in the light of the amount of work required for the purpose of handling Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P.

18 In the fourth place, the weighted average hourly rate claimed by Unitec Bio and Others amounts to approximately EUR 344, which is well below the hourly rates that have already been accepted by the Court of Justice and cannot therefore be considered to be excessive in the light of the expertise of the lawyers involved.

19 The Council contends that the number of hours of work claimed by Unitec Bio and Others is excessive and that 45 hours of work were objectively necessary for the purpose of the proceedings before the Court of Justice. In that regard, it stated that, with the exception of the institutional issue raised in its appeals, the majority of the arguments put forward in the responses to the appeals had already been raised in the administrative proceedings before the European Commission and in the actions brought before the General Court.

20 The Council therefore argues that 45 hours of work, carried out by a single lawyer and invoiced at an hourly rate of EUR 250, were objectively necessary to defend the interests of Unitec Bio and Others in the case before the Court of Justice. In respect of the taxation of costs proceedings, that institution proposes a sum of EUR 300.

21 In that regard, the Council argues, in essence, that the appeals were not particularly complex, that the lawyers of Unitec Bio and Others are highly specialised, that no evidence has been adduced to show that Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P presented a financial interest of an unusual nature to those parties and that a certain number of the hours of work for which payment is claimed were not objectively necessary for the purpose of defending the interests of Unitec Bio and Others in the appeal proceedings.

22 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.

23 It is thus clear 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).

24 Furthermore, 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 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).

25 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 them, 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).

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

27 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).

28 In the second place, as regards the significance of the dispute from the point of view of EU law and the difficulties presented by it, it must be noted that the appeals brought by the Council in Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P sought to have set aside the judgments under appeal, by which the General Court annulled Articles 1 and 2 of the contested regulation in so far as those articles concerned Unitec Bio and Others.

29 In support of its appeals, the Council had put forward three grounds of appeal. The first ground of appeal alleged a misinterpretation of Article 2(5) of the basic regulation and an incorrect assessment of the burden of proof on the institutions in the application of that provision. The second and third grounds of appeal alleged, respectively, first, an inadequate statement of reasons in the judgments under appeal and a distortion of the facts and, second, that the operative part of those judgments gave undue effects to the finding of illegality of Articles 1 and 2 of the contested regulation in so far as they concerned Unitec Bio and Others.

30 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 investigation for the purpose of calculating the normal value of the like product within the meaning of that regulation.

31 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 the basic regulation, the prices of palm oil in the records of the relevant Indonesian exporters. In particular, the Council criticised the General Court for misapplying its own case-law, as set out in 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 had infringed Article 2(5) of the basic regulation and had placed an inappropriate burden of proof on the EU institutions.

32 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 given that the question of law that it raised concerning the interpretation of Article 2(5) of the basic regulation would have led the Court of Justice 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.

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

34 Moreover, as regards the issue relating to the plea of inadmissibility raised by Unitec Bio and Others, it must be held that that issue presented some difficulty and was clearly important from the point of view of EU law given that it concerned the voting rule to be applied to a Council decision to bring an appeal before the Court of Justice, an issue that requires that Court to interpret provisions of primary law, such as Article 16(3) TEU and Article 240(3) TFEU.

35 As regards, in the third place, 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 that 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).

36 In that regard it appears, having regard to the above findings, that the drafting by the lawyers of Unitec Bio and Others of the responses to the appeals lodged by the Council and of the rejoinders required an in-depth analysis of the first ground of appeal and of the plea of inadmissibility. In addition, it was necessary to prepare for the hearing before the Court of Justice, in which the parties were invited to participate, and, in particular, to prepare the answers to the questions put by the Court of Justice for the purposes of that hearing. However, the view cannot be taken that the corresponding workload was particularly heavy, given that the drafting of those pleadings and of the answers to those questions required the examination only of a limited number of questions of law and that questions of fact were not raised at the appeal stage.

37 Furthermore, lawyers who claim to be highly qualified and very experienced in anti-dumping law and whose services are invoiced at an hourly rate from EUR 200 to EUR 500 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).

38 In that regard, the lawyers instructed by Unitec Bio and Others had already been able to gain in-depth knowledge of Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P during both the administrative proceedings before the Commission and the proceedings before the General Court, as they had already represented those parties in both those proceedings, which must not only have facilitated their work but also reduced the time required to study the appeals and draft the responses and the rejoinders as well as the answers to the questions put for the purposes of the hearing before the Court of Justice.

39 It follows that the 187.5 hours of work performed by the lawyers instructed by Unitec Bio and Others in the appeals 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.

40 In the fourth place, as regards the economic interests at issue in those cases, it must be noted that Unitec Bio and Others had a definite interest in the Council’s appeals being dismissed. By those appeals, the Council asked the Court of Justice to set aside the judgments under appeal, by which the General Court had annulled Articles 1 and 2 of the contested regulation in so far as those articles concerned Unitec Bio and Others. However, the fact remains that no evidence, apart from the unsubstantiated claims in figures, was submitted to the Court of Justice to indicate that that case presented an economic interest of an unusual nature to United Bio and Others (see, by analogy, order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P‑DEP, not published, EU:C:2019:298, paragraph 35).

41 In the fifth place, as regards the sum of EUR 1 548 claimed by Unitec Bio and Others 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).

42 Unitec Bio and Others’ financial claim appears, for that reason, to be disproportionate and cannot, at least in its entirety, be accepted as costs objectively necessary for the purpose of the present proceedings.

43 Having regard to all the foregoing considerations, a fair assessment of the costs recoverable in Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P and of those recoverable in the present taxation of costs proceedings is achieved by fixing their total amount at EUR 28 000.

The total amount of the costs to be paid by the Council of the European Union to Unitec Bio SA, Molinos Río de la Plata SA, Oleaginosa Moreno Hermanos Sacifi y A, Vicentin SAIC, Aceitera General Deheza SA, Bunge Argentina SA, Cámara Argentina de Biocombustibles (Carbio), Cargill SACI and LDC Argentina SA in Joined Cases C‑602/16 P and C‑607/16 P to C‑609/16 P is fixed at EUR 28 000.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Unitec Bio and Others v Council (Taxation of costs - Order) [2019] EUECJ C-602/16P-DEP_CO (19 December 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C60216PDEP_CO.html Cite as: EU:C:2019:1148, [2019] EUECJ C-602/16P-DEP_CO, ECLI:EU:C:2019:1148

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