Internal Instruction Recovery of costs awarded by the Court Registration N°: IntINS-026                 Classification: INTERNAL Generation date: 19/09/2016                 Last revision date: Document Owner: 1. Description This Internal Instruction provides an overview of the jurisprudence of the Court of Justice on the recovery of the costs incurred by the parties during the course of proceedings, with particular reference to situations which may be relevant to ECHA. After describing the conditions for the recovery of costs (section 1) and the definition of recoverable costs (section 2), it discusses the procedure for the taxation of costs and the criteria for appraisal by the Courts (section 3). On a practical side, this Internal Instruction describes the aspects to take into account when communicating with the party(ies) ordered to bear the costs (section 4) as well as the internal procedure involving R1 (section 6). Lastly, it provides different ways forward in case of non- payment by the party(ies) (section 5). The annexes attached to this Internal Instruction aim at providing templates or examples of cover letter, debit note and ABAC functionalities (section 7). 2. Contents 1.   Conditions for the recovery of costs ................................................................... 2 2.   Definition of recoverable costs........................................................................... 2 2.1. Costs “incurred for the purpose of the proceedings” ..................................... 3 2.2. Costs “necessarily” incurred ...................................................................... 4 2.3. Unreasonable or vexatious costs ................................................................ 7 2.4. Specific rules applicable to staff cases ........................................................ 7 2.5. Specific rules applicable to costs incurred during the course of intervention .... 8 2.6. Discontinuance, withdrawal and cases not proceeding to judgment ................ 9 2.7. Enforcement costs (national level) ............................................................. 9 2.8. Summary of the recoverable costs ............................................................. 9 3.   Disputes on the amount of recoverable costs (taxation procedure) ....................... 10 3.1. Conditions of admissibility........................................................................ 11 3.2. Determination of the amount of recoverable costs ...................................... 13 3.3. Supporting documents for the determination of the amount ......................... 14 3.4. Amount of the costs incurred for the taxation procedure .............................. 15 4.   Practicalities in communicating with the parties .................................................. 16 4.1. Language of the pre-info letter, cover letter and debit note .......................... 16 4.2. Cases where one party is ordered to pay the costs of ECHA ......................... 16 4.3. Cases where several parties are ordered to pay the costs of ECHA ................ 16 5.   Non-payment of the costs and calculation of default interest ................................ 16 6.   Internal procedure .......................................................................................... 18 7.   Annexes ........................................................................................................ 22 IntINS-026Recovery of costs awarded by the Court.docPage                                                    1/34

1. Conditions for the recovery of costs In order for ECHA to recover the costs incurred in proceedings before the General Court and the Court of Justice there must be a decision to that effect, contained in the dispositive part of a judgment or order. In principle, pursuant to Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is ordered to pay the costs if they have been applied for in the successful party’s pleadings. If they have not been applied for, each party shall bear its own costs (Article 136(4)). Judgments are effective from the day of their delivery and the amount due can, in principle, be claimed on that day. However, in order to avoid double work, in the judgments of the General Court, it is advisable to wait for the expiry of the deadline for appeal (2 months and 10 days from the date of delivery of the judgment) before dispatching a debit note. In Marcuccio / 1 Commision, the Court found this practice acceptable2. However, care must be taken not to let the claims limitation period expire. It is important to note that, according to Article 78(2) of the Financial Regulation 3, a claim must qualify as being certain (of a fixed amount), liquid and due. The claim is always liquid (EUR currency) and due (with the order of the court ordered one party to bear the costs). The claim is certain when the parties agreed to it or when an order of the court established the amount. It follows that if a party contests the amount of the costs, the claim does no longer qualify as certain. Therefore the dispute must be brought before the court which will establish the amount of the cost (taxation procedure, section 3 below). At the end of the taxation procedure, the claim will qualify the three cumulative conditions which will allow the party to send a debit note and, if necessary, enforce the executive of the last order of the court (at national level). Against this background, when the costs incurred by ECHA has bored by another party, ECHA first sends a “pre-info letter” to the party informing the latter of the amount of the costs and asking confirmation of the address (see Annex 1). If, within one month, the party(ies) did not react, it can be assumed that they agree with the costs. Claim qualifies the three conditions. ECHA can thus send the debit note to the party(ies) (original and certified copies). 2. Definition of recoverable costs Article 144 of the Rules of Procedure of the Court of Justice (‘CJ RoP’) and Article 140 of the Rules of Procedure of the General Court (‘GC RoP’) provide as follows: “[T]he following shall be regarded as recoverable costs: (a) sums payable to witnesses and experts (…); (b) 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.” 1 Article 56 of the Statute of the Court of Justice juncto Article 51 of the Rules of Procedure of the Court (‘ECJ RoP’). 2 Order in Marcuccio/Commission, T-38/10 P-DEP, EU:T:2013:512, paragraph 17. 3 Regulation (EU, EURATOM) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Eratom) No 1605/2002, O.J. L298/1, 26.10.2012; see also Article 60(2) of Financial Regulation of ECHA (MB/WP/03/2014) and its implementing rules (MB/55/2014). Recoveryof costs awarded by the Court.doc         Page                                      2/34

According to settled case-law, “it follows from that provision that recoverable costs are confined to expenses which are both incurred for the purpose of the proceedings before the Court and indispensable for such purposes”.     4 2.1.        Costs “incurred for the purpose of the proceedings” According to settled case-law, “the word ‘proceedings’ used in that article only refers to proceedings before the Court and does not include any prior stage. This follows in particular from the reference made by that article to Article [139 of the GC RoP and 143 of the CJ RoP], which refers to ‘Proceedings before the Court’. The applicant’s request must therefore be dismissed to the extent to which it seeks the award, by way of recoverable costs, of the expenses and fees relating to the stage prior to the application to the Court.”5 Accordingly, payment of costs relating to the pre-litigation stage cannot be claimed. The Court rejected, for instance, claim of costs relating to the “legal work carried out in the course of the proceedings preceding the judicial phase” . It also refused the recovery of costs relating 6 to the period after the oral procedure as “the costs incurred by the applicant after that date do not appear to be directly connected to its defence before the Court and cannot, therefore, be regarded as costs necessary for the purpose of the proceedings, within the meaning of Article [139 of the GC RoP and 143 of the CJ RoP].”7 In short, the Court stated that “lawyers’ fee for periods during which no procedural documents were notified must also be excluded since they are not necessary to the proceedings.”      8 Hence fees relating to the analysis of an Opinion of the Advocate General relating to negotiations in order to arrive at an extra-judicial settlement are not considered to be “expenses necessarily incurred for the purposes of the proceedings”.9 However it is worth noting that Article 190(2) of the GC RoP sets an exception regarding the proceedings before the Board of Appeal: “Costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal shall be regarded as recoverable costs.” Moreover, the salary of EU officials acting as agents is not recoverable because it does not constitute a fee incurred for the purpose of the proceedings but a remuneration due under the Staff Regulations. The remuneration of agents instructed to represent the institutions in legal proceedings falls within the category of “other costs precluded, by their nature, from being recoverable costs” . The Court explained its reasoning in Case Commission / Sveriges 10 Betodlares and Henrikson as follows:“(…) when the Community institutions arrange to be represented by a lawyer or appoint as agent a person who is not a member of their staff and who must be paid, it is clear that such remuneration comes within the concept of expenses necessarily incurred for the purpose of the proceedings. When, on the other hand, they think that their interests will be better served by their being represented in an action before the Court by one of their officials, the situation is different. Such an official, being subject to staff regulations which govern his pecuniary status, is required to assist and tender advice to his institutions and to be responsible for the performance of the duties assigned to him within the 4 Judgment of 27 November 2000, Elder / Commission, T-78/99 (92), EU:T:2000:274, paragraph 16 and case-law cited. 5 Judgment in Ernst Hake & Co / Commission, Case 75/69, EU:C:1970:82, paragraph 1. 6 Judgment of 24 January 2002, Groupe Origny SA / Commission, T-38/95 DEP, EU:T:2002:13, paragraph 29. 7 Judgment of 24 January 2002, Groupe Origny SA / Commission, T-38/95 DEP, EU:T:2002:13, paragraph 31 and case-law cited. 8 Judgment in Mulder a.o. / Council and Commission, C-104/89 DEP, EU:C:2004:1paragraph 47. 9 Judgment in Mulder a.o. / Council and Commission, C-104/89 DEP, EU:C:2004:1paragraph 48 and case- law cited. 10 Order in De Nicola / BEI, F-55/08 DEP, F:2011:155, paragraph 32. Recoveryof costs awarded by the Court.doc      Page                                  3/34

scope of his employment, which includes, in connection with representation before the Court, the defence of the interests of the institutions which he represents. The performance of his duties as a whole finds its counterpart in the remuneration allotted to him under the staff regulations, so that expenses in connection with the work of the official cannot be considered as expenses incurred for the purpose of the proceedings and therefore as recoverable.»11 2.2.        Costs “necessarily” incurred According to the Court, “expenses incurred by a party which are not directly connected with the proceedings before the Courts are simply a matter of choice and cannot be recovered”.        12 Therefore, a litigation insurance premium is not a recoverable expense unless, in exceptional circumstances, the party can prove that it would not have been able to bring the action without an insurance policy: “the expense of paying a litigation insurance premium, even if incurred for the purposes of proceedings before the Court of First Instance, cannot, as a rule, be considered to be an indispensable expense within the meaning of Article 91(b) of the Rules of Procedure. However, it might be so considered in exceptional circumstances, where the party concerned can prove, on the basis of objective evidence, that it would not have been able to bring its action without a litigation insurance policy guaranteeing, in the event of an order for costs being made against it, payment of the costs of the opposite party.”13 As regards the costs recoverable in respect of representation fees (recourse to an external lawyer), the Court has consistently held that a EU body was, as regards the manner in which it intends to be represented before the Court, free to chose either one of its officials or a person who was not a member of its staff as agent 14. First, it established that “under Article 19 of the Statute of the Court of Justice of the European Union, the institutions of the Union are to be represented before the Courts of the European Union by an agent appointed for each case and that such agent may be assisted by an adviser or by a lawyer.”15 The Court has repeatedly held that the word ‘institution’ also refers to agencies.  16 The Court further held that “the institutions of the European Union are free to have recourse to the assistance of a lawyer. When they do so, the lawyer’s remuneration is covered by the concept of expenses necessarily incurred for the purposes of the proceedings, without the institution being required to show that such assistance is objectively warranted”.    17 Therefore the recourse to an external lawyer by an institution can be regarded as a right. In Longinidis / Cedefop, the Court held that “Any other assessment which makes the right of an EU body to claim all or part of the fees paid to a lawyer subject to proof of an ‘objective’ need to use that lawyer’s services would in fact constitute an indirect restriction on the freedom 11 Order in Commission / Sveriges Betodlares and Henrikson, C-409/96 P-DEP, EU:C:1999:389, paragraph 12; Order in Petrus Kerstens / Commission, F-12/10 DEP, EU:F:2012:183, paragraphs 25-26 and case-law cited. 12 Judgment of 27 November 2000, Elder / Commission, T-78/99 (92), EU:T:2000:274, paragraph 17. 13 Judgment of 27 November 2000, Elder / Commission, T-78/99 (92), EU:T:2000:274, paragraph 18. 14 Order of 6 September 2011, AWWW GmbH ArbeitsWelt-Working World / Eurofound, T-211/07 DEP, EU:T:2011:415, paragraph 17; Order in Firma Gebrüder Dietz / Commission, 126/76, EU:C:1979:158, paragraph 5. 15 Order in De Nicola / BEI, F-55/08 DEP, F:2011:155, paragraph 26. 16 Order in De Nicola / BEI, F-55/08 DEP, F:2011:155, paragraph 26 and the case-law cited; Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 24 and the case-law cited; Order of 10 October 2013, CPVO / Schräder, C-38/09 P-DEP, EU:C:2013:679, paragraphs 20-22 and the case-law cited. 17 Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 24 and the case-law cited; Order of 10 October 2013, CPVO / Schräder, C-38/09 P-DEP, EU:C:2013:679, paragraphs 20-22 and the case-law cited. Recoveryof costs awarded by the Court.doc      Page                                   4/34

conferred by the first paragraph of Article 19 of the Statute of the Court of Justice and entail for the EU judicature a duty to substitute its own assessment for that of the institutions and bodies responsible for the organisation of their departments. Such a task is compatible neither with the first paragraph of Article 19 of the Statute of the Court of Justice, nor with the power to adopt rules for their own internal organisation enjoyed by the institutions and bodies of the European Union in relation to the management of their cases before the courts of the European Union”.  18 It follows that the use of external counsel has no impact on whether costs can be recovered, but merely on the amount. Therefore there is no question of unequal treatment if the defending administration uses external lawyers in some cases and not in others 19. However, the Court assesses the amount of the expenses incurred for having recourse to an external lawyer. The fees for one lawyer are usually considered recoverable, save for complex cases. In          20 Mulder a.o. / Council and Commission, the Court recalled that “while, in principle, the remuneration of only one agent, legal advisor or lawyer is recoverable, it is possible that, depending on the individual circumstances, and most importantly, the complexity of each case, the fees of a number of lawyer may be considered necessary expenses”.21 In Longinidis / Cedefop it held that “expenses for one lawyer and one agent for each party may be considered necessary (…) Costs associated with the involvement of a second lawyer or agent are therefore recoverable only where warranted by specific circumstances relating, in particular, to the nature of the dispute in question”.     22 An appeal procedure, being limited to points of law, will not normally justify the recourse to more than one counsel.23 In any event, the coordination costs between lawyers from different law firms and between those lawyers and the interveners cannot be regarded as necessary 24                                                  25 for the procedure in so far as coordination was not requested by the Courts. However, the division of the legal profession in barristers and solicitors in certain Member States constitutes a somewhat special case: “where a party decides to be represented by both a solicitor and a barrister, it does not follow that the fees due to each of them are not to be regarded as costs necessarily incurred for the purpose of the proceedings, as provided for in Article 91(b) of the Rules of Procedure. In taxing costs in those circumstances, the Court must examine the extent to which the services supplied by all the lawyers concerned were necessary for the conduct of the legal proceedings and satisfy itself that the fact that both categories of lawyers were instructed did not entail any unnecessary duplication of costs”    26 18  Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 26 and the case-law cited. 19 Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 25 and the case-law cited. 20 Order of 8 November 1996, Stahlwerke Peine-Salzgitter / Commission, T-120/89 (92), EU:T:1996:161, paragraph 30; Order of 29 November 1996, AITEC / Commission, T-447/93 (92), EU:T:1996:174, paragraph 20; Order of 1 October 2013, Elf Aquitaine / Commission, C‑521/09 P-DEP, EU:C:2013:644, paragraph 22 and the case-law cited. 21 Order in Mulder a.o. / Council and Commission, C-104/89 DEP, EU:C:2004:1, paragraph 62 and case- law cited. 22 Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 50 and case-law cited; cf. K. Lenaerts et al., Procedural Law of the European Union, 2nd Ed., Sweet & Maxwell 2006, p. 582. 23 Order in ICI / Commission, C-286/95 P-DEP, EU:C:2004:412, paragraph 20 ff. 24 Order of 29 October 2004, Schneider Electric / Commission, T-77/02 DEP, not published; K. Lenaerts et al., Procedural Law of the European Union, 2nd Ed., Sweet & Maxwell 2006, p. 583. 25 Order of 8 April 2014, Laboratoires CTRS / Commission, T‑12/12 DEP, EU:T:2014:231, paragraph 48. 26 Order of 8 April 2014, T‑12/12 DEP, Laboratoires CTRS / Commission, T‑12/12 DEP, EU:T:2014:231, paragraph 34 and the case-law cited; Order in Airtours / Commission, T-342/99 DEP, EU:T:2004:192, paragraph 42. Recoveryof costs awarded by the Court.doc       Page                                  5/34

In CPVO / Schräder, although the Court acknowledged that the presence of two agents at the oral hearing was useful for the purpose of the proceedings, the participation of only one agent was to be considered objectively necessary for the purpose of the proceedings. Therefore the expenses of only one agent were to be recovered by the other party.        27 In addition to agents or external lawyers, the involvement of economic advisers may sometimes prove necessary and entail recoverable costs, for instance if a contested Commission Decision is largely based on economic considerations. 28 The applicant must demonstrate evidence that the services of the economist were essential. This reasoning can 29 presumably be applied also to scientific advisers in complex scientific matters. In the case of ECHAe, the travel and subsistence expenses arising from the participation in a hearing of scientific advisers who are ECHA agents could be regarded as necessary and the cost of their involvement may be recoverable under Article 140 of the GC RoP. In Airtours / Commission, the Court acknowledged that “the involvement of economic advisers or experts specialising in that field may sometimes prove necessary and entail costs which may be recovered (…)” however it stressed that the applicant should explain “how this case could require the involvement of [the number of] economists”.30 Therefore, the involvement of experts gives rise to recoverable costs only to the extent to which their expertise is necessary for the resolution of the case. As regards the recovery of the travel and subsistence expenses, the Court requires that “the travel and subsistence expenses incurred by persons other than the applicant’s lawyer are recoverable only if their presence is necessary for the purpose of the proceedings”. 31 It must thus be demonstrated, on a case-by-case basis, that the presence of a scientific expert at an oral hearing is necessary in this sense. Indeed, the Court has held that the travel and subsistence expenses for the participation in the hearing of a person whose presence is not necessary (e.g. an applicant’s CEO) do not come under ”expenses necessarily incurred” within the meaning of Article 140 of the GC RoP.32 As regards the costs relating to translation which EU institutions are required to produce before the Court, the Court concluded that they cannot be held to be recoverable costs 33. In Euroalliages / Commission, however, the Court allowed recoverable costs to include translation costs only for interveners and subject to certain conditions (i.e. the translation of documents is necessary to enable defending itself). 34 In Longinidis / Cedefop, the Court explained that “if the translation costs reimbursement of which is sought by Cedefop were upheld as recoverable costs, that would amount to discrimination against Mr Longinidis on grounds of language, as Cedefop would not have incurred those costs had Mr Longinidis chosen another language of the case, such as English, the language into which and from which Cedefop had the translations in question done.”    35 However, the costs for translating documents may be recoverable “only where there has been a change in the language of the case, following an agreement between the parties to that effect, or in cases of opposition to the language in which the application was drafted becoming 36 the language of the case.”. 27 Order in CPVO / Schräder, C-38/09 P-DEP, EU:C:2013:679, paragraph 40. 28 Order of 28 June 2004, Airtours / Commission, T-342/99 DEP, EU:T:2004:192, paragraph 55. 29 Order of 17 September 1998, Branco / Commission, T-271/94 (92), EU:T:1998:222, paragraph 21. 30 Order of 28 June 2004, Airtours / Commission, T-342/99 DEP, EU:T:2004:192, paragraphs 55-56. 31 Order of 17 September 1998, Branco / Commission, T-271/94 (92), EU:T:1998:222, paragraph 20 and case-law cited. 32 Order of 17 September 1998, Branco / Commission, T-271/94 (92), EU:T:1998:222, paragraph 20. 33 Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 64 and case-law cited. 34 Order of 18 April 2006, Euroalliages a.o. / Commission, T-132/01 DEP, EU:T:2006:112, paragraph 46. 35 Order of 11 December 2014, Longinidis / Cedefop, T-283/08 P-DEP, EU:T:2014:1083, paragraph 61. 36 Order of 19 March 2009, House of Donuts International / OHIM, Joined Cases T‑333/04 DEP and Recoveryof costs awarded by the Court.doc        Page                                 6/34

Moreover, apart from the expenses which are separable from the internal activity of an institution, internal costs, such as administration costs, telephone, secretarial work do not come within the meaning of expenses necessarily incurred for the purpose of the proceedings under Article 140 of the GC RoP .      37 However, the costs of copies can be included in the definition of recoverable costs .         38 Lastly, it is worth recalling that value-added tax (VAT) cannot be claimed as recoverable costs. Under Article 102 of the REACH Regulation, the Protocol on the Privileges and Immunities of the EU applies to the Agency. Accordingly, ECHA is exempt from payment of VAT on goods and services that it purchases. It cannot therefore include that tax in the recoverable costs39. 2.3.        Unreasonable or vexatious costs Article 135 of the GC RoP states: “1. Exceptionally, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any. 2. The General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the General Court holds to be unreasonable or vexatious.” Article 139 of the CJ RoP contains provisions to the same effect. On a casuistic basis, the 40 Courts have deemed costs to be vexatious or unreasonable in a variety of circumstances. 41 Whilst a typological categorisation and analysis would go beyond the scope of this Internal Instruction, it is available in the library of the Legal Affairs Unit in: S. Mail-Fouilleul, Les dépens dans le contentieux communautaire, Bruylant, 2005, at pp. 149-172. 2.4.         Specific rules applicable to staff cases The general rules as to allocation of costs in staff cases are similar to the ones described above. Article 101 of the Rules of Procedure of the Civil Service Tribunal states that “the unsuccessful party shall bear his own costs and shall be ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings (…)”. As regards the definition of recoverable costs, it is similar to the definition provided in proceedings before the General Court and Court of Justice. Article 105 reads as follows: “(…) the following shall be regarded as recoverable costs: T‑334/04 DEP, EU:T:2009:73, paragraph 23. 37 Order in Commission / Sveriges Betodlares and Henrikson, C-409/96 P-DEP, EU:C:1999:389, paragraph 14; Order in EIB / De Nicola, C-198/02 P(R)-DEP, paragraph 20. 38 Order in Kerstens / Commission, T-266/08 P-DEP, EU:T:2012:146, paragraphs 26-27. 39 Order of 6 September 2011, AWWW GmbH ArbeitsWelt-Working World / Eurofound, T-211/07 DEP, EU:T:2011:415, paragraph 28. 40 Judgment in Leroy / High Authority, Joined Cases 35/62 and 16/63, EU:C:1963:50, p. 208; Judgment of 28 November 2002, Scan Office Design / Commission, T-40/01, EU:T:2002:288, paragraphs 124-125. 41 The casuistic, sometimes arbitrary nature of this body of decisions has been criticised extensively in the literature. Cf. e.g. S. Mail-Fouilleul, Les dépens dans le contentieux communautaire, Bruylant, 2005, p. 144 and fn. n. 170; A. Fiebig, The indemnification of costs in proceedings before the European Courts, CMLR 1997(1) p. 89-134. Recoveryof costs awarded by the Court.doc        Page                                       7/34

(a) Sums payable to witnesses and experts; (b) Expenses occasioned by letters rogatory ordered by the Tribunal; (c) Expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of the agent, adviser or lawyer.” However, staff cases are subject to special interpretations as to costs because of the particular nature of employment controversies between the Union and its servants. Formerly, in staff 42 cases before the General Court the institutions had to bear their own costs in any event, unless they were caused unreasonably or vexatiously. 43 2.5.         Specific rules      applicable to     costs    incurred during      the    course of intervention Member States and EU institutions intervening in proceedings bear their own costs regardless of whether the party which they support is successful, in accordance with Article 138(1) of the GC RoP. The situation with regard to non-privileged interveners, including EU agencies,               44 is more complex. The jurisprudence on this point appears somewhat contradictory, but the Court generally seems to take into account (1) the extent of the interveners’ contribution to the proceedings and (2) the strength of their interest in the case.      45 Thus, non-privileged interveners who supported the unsuccessful party may alternatively: (i) be ordered to pay only their own costs (by far the most frequent outcome as per the general rule of Article 138 of the GC RoP and Article 140 of the CJ RoP); 46 (ii) be ordered to pay jointly with that party the costs which have accrued after leave to intervene was granted; or (iii) 47                                                                            48 be ordered to refund to the successful party the additional costs resulting from the intervention.49 On the other hand, non-privileged interveners who supported the successful party are on occasion allowed to recover the costs of their intervention. 50 42 S. Mail-Fouilleul, Les dépens dans le contentieux communautaire, Bruylant, 2005, pp. 242 ff. 43 Judgment of 4 May 2005, Castets / Commission, T-398/03, EU:T:2005:159, paragraph 39; Judgment of 16 December 2004, De Nicola / EIB, Joined Cases T-120/01 and T-300/01, EU:T:2004:367, paragraphs 329-332; not so (formerly) on appeal to the Court of Justice: Order in Progoulis / Commission, C-49/96 P, EU:C:1996:505, paragraph 37. 44 Note that Article 40(2) of the Statute of the Court states that “[Intervention] shall be open to the bodies, offices and agencies of the Union and to any other person which can establish an interest in the result of a case submitted to the Court”. Cf. T-360/13, Vecco a.ol./ Commission , in which case ECHA intervened and the General Court ordered ECHA to bear its own costs (under appeal in C-651/15 P). 45 S. Mail-Fouilleul, Les dépens dans le contentieux communautaire, Bruylant, 2005, pp. 193 ff. 46 Order of 16 October 1995, Tiercé Ladbroke / Commission, T-561/93, EU:T:1995:179. 47 Judgment in Champlor SA-Merlaut / Commission, Joined Cases 233 to 235/86, EU:C:1987:238, paragraph 12; cf. K. Lenaerts et al., Procedural Law of the European Union, 2nd Ed., Sweet & Maxwell 2006, p. 586. 48 S. Mail-Fouilleul, Les dépens dans le contentieux communautaire, Bruylant, 2005, pp. 194-195 and case-law cited. 49 Judgment in NTN Toyo Bearing a.o / Council, Case 113/77, EU:C:1979:91, paragraphs 28-31; for an in-depth analysis see : S. Mail-Fouilleul, Les dépens dans le contentieux communautaire, Bruylant, 2005, pp. 187 ff. 50 K. Lenaerts et al., Procedural Law of the European Union, 2nd Ed., Sweet & Maxwell 2006, p. 586. Recoveryof costs awarded by the Court.doc         Page                                   8/34

2.6.         Discontinuance, withdrawal and cases not proceeding to judgment If proceedings are discontinued or a party withdraws, that party will, as a rule, be ordered to pay the costs if the other party has applied for them in its observations on the discontinuance or withdrawal, in accordance with Articles 136 and 137 of the GC RoP (and Articles 141 and 148 of the CJ RoP). However, pursuant to Article 136(2) of the GC RoP (and Article 141(2) of the CJ RoP), where it appears justified by the other party’s conduct the withdrawing party may be awarded the costs. Where the parties have come to an agreement on costs, the Court’s decision shall be in accordance with that agreement (Article 136(3) of the GC RoP and Article 141 of the CJ RoP), but only if it is expressly confirmed by the parties to the Court in statements made by them in connection with the withdrawal of the proceedings.    51 If a case does not proceed to judgment the costs are at the discretion of the Court (Article 137 of the GC RoP and Articles 142 and 149 of the CJ RoP). For instance, where the Commission withdraws a contested decision, thus rendering the proceedings devoid of purpose, it will have to bear the costs.  52 2.7.          Enforcement costs (national level) As mentioned above under section 1, the order of the Court ordering a party to bear the costs of another party does not constitute an enforceable act insofar as this order does not establish the amount of the costs. The latter is set by one of the party and, if the other contests them, the taxation procedure before the court is necessary to fix the amount. It is only the order establishing the amount of the costs that can be enforced by the national authorities. For this purpose, the party should request an authenticated copy of the order (Article 170(4) of the GC RoP and Article 145(3) of the CJ RoP). The enforcement procedure follows the national law applicable to the party ordered to pay the costs. The procedure as well as the costs related to enforcement may vary depending on the Member States. Before engaging into enforcement procedure, it is therefore necessary to make a cost-benefit analysis taking into account the applicable national law. In certain cases, it may be that the enforcement procedure is more costly that the amount to be recovered. Indeed Article 89 of the former version of GC RoP which provided that “Costs necessarily incurred by a party in enforcing a judgment or order of the General Court shall be refunded by the opposite party on the scale in force in the State where enforcement takes place” was not kept in the amended version of the GC RoP. It follows that the expenses related to the national judicial costs such as bailiff fees and legal stamps may not be charged back to the party ordered to pay the costs. For those cases, therefore, a decision to waive the recovery order may be considered. 2.8.         Summary of the recoverable costs Recoverable costs                                Suporting documentation External counsel fee, including travel and       Invoice by law firm (containing break- subsistence costs for oral hearing (if           down) 51 Order of 20 January 1995, Werner / Commission, T-124/93 DEP, EU:T:1995:8, paragraph 10. 52 Order of 4 December 2004, González y Díez / Commission, T-291/02, not published. Recoveryof costs awarded by the Court.doc     Page                                  9/34

outsourced; in principle one lawyer)              Proof of payment by ECHA ECHA Agent(s) travel and subsistence costs        Print-out of mission cost claim from MiMa for oral hearing - in principle, one ECHA Scientific Adviser(s) travel and             Print-out of mission cost claim from MiMa subsistence costs for oral hearing (only if necessary,; in principle one adviser)             Written justification on the necessity of the Scientific Adviser’s involvement Office costs, if not negligible (postage,         (obsolete since the introduction of e-Curia) copying) Translation costs (only if there has been a       Invoice from translators change in the language of the case) Proof of payment by ECHA 3. Disputes on the amount of recoverable costs (taxation procedure) If the parties cannot agree about the amount of recoverable costs, an application for the taxation of costs can be brought before the court which dealt with the case. The Court of Justice decides upon the matter by order of the Chamber of three or five Judges to which the Reporting Judge is assigned, after hearing the opposite party and the Advocate-General (Article 145 of the CJ RoP). The General Court, after hearing the parties (written observations), decides by an order against which no appeal will lie (Article 170 of the GC RoP). If a dispute regards the costs of proceedings which involved both the General Court and the Court of Justice – e.g. dismissed appeals – a request for the taxation of costs may have to be lodged at each Court for the relevant part of the total expenses. In Schwaaner Fischwaren / Ruegen Fisch, the Court of Justice only taxed on the costs incurred before it.53 It considered that “since the judgmenet of the General Court, including its ruling on costs, has not been set aside, it is for the General Court to determine the amounts recoverable following the proceedings before it which culminated in the judgment under appeal (…)”.54 As mentioned above under section 1 and sub-section 2.7, the taxation procedure is necessary for any further enforcement at national level. According to Article 170(1) of the GC RoP, the application for taxation must be submitted in the same form as any application (Articles 76 to 78, points 123 to 135 of the Practice Rules, Aide-mémoire and model summary on application available on Curia website). 55                       56 53 Order in Schwaaner Fischwaren / Ruegen Fisch, C‑582/11 P‑DEP, EU:C:2013:754, paragraph 20. 54 Order in Schwaaner Fischwaren / Ruegen Fisch, C‑582/11 P‑DEP, EU:C:2013:754, paragraph 19 and the case-law cited. 55 http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-06/02451 en.pdf 56 http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-07/microsoft word - resume.en.pdf Recoveryof costs awarded by the Court.doc     Page                                   10/34