Language of document : ECLI:EU:F:2014:260

ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (First Chamber)

2 December 2014 (*)

(Civil service — Procedure — Taxation of costs)

In Case F‑142/11 DEP,

APPLICATION for taxation of costs,

Erik Simpson, official at the Council of the European Union, residing in Brussels (Belgium), represented by M. Velardo, lawyer,

applicant,

v

Council of the European Union, represented by M. Bauer and A.F. Jensen, acting as Agents,

defendant,

THE CIVIL SERVICE TRIBUNAL

(First Chamber)

composed of R. Barents (Rapporteur), President, E. Perillo and J. Svenningsen, Judges,

Registrar: W. Hakenberg,

makes the following

Order

1        By a document received at the Registry of the Tribunal on 10 April 2014, Mr Simpson submitted the present application for taxation of costs to the Tribunal in accordance with Article 92(1) of the Rules of Procedure in the version in force at the time (‘the former Rules of Procedure’) following the judgment of the Tribunal of 12 December 2013, in Simpson v Council, F‑142/11, EU:F:2013:201 (‘the judgment in Case F‑142/11’), which is the subject of an appeal before the General Court of the European Union, Case T‑130/14 P).

 Legal context

2        Article 91 of the former Rules of Procedure, entitled ‘Recoverable costs’, provides:

‘Without prejudice to the provisions of Article 94, the following shall be regarded as recoverable costs:

(b) expenses incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of the representative, if they are essential.’

 Facts

3        By application lodged at the Tribunal Registry on 27 December 2011 and registered as Case F‑142/11, the applicant requested, first, the annulment of the decision of 9 December 2010 by which the Council of the European Union rejected his request for promotion to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation, and of the decision of 7 October 2011 rejecting his complaint and, secondly, an order that the Council pay compensation for the harm suffered.

4        After two exchanges of pleadings and a hearing that took place on 16 April 2013, the Tribunal, by the judgment in Case F‑142/11, annulled the decision of the Council of 9 December 2010, dismissed the action as to the remainder and held that the Council should bear its own costs and pay the costs incurred by the applicant, as is apparent from points 1, 2 and 3 of the operative part.

5        To justify the order for costs against the Council, the Tribunal relied on the following matters, set out in paragraphs 40, 41 and 42 of the judgment in Case F‑142/11:

‘40      Under Article 87(1) of the [former] Rules of Procedure, without prejudice to the other provisions of Chapter 8 of Title 2 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(2), the Tribunal may, if equity so requires, decide that an unsuccessful party is to pay only part of the costs or even that that party is not to be ordered to pay any.

41      First of all it must be pointed out that a decision on costs made pursuant to Article 86 of the [former] Rules of Procedure determines only who should bear the costs, not the amount of the costs to be recovered. The latter issue is to be determined, in the event of any dispute, under the procedure provided for in Article 92(1) of the [former] Rules of Procedure (see, to that effect, order of 20 January 1995 in [Werner v Commission, T‑124/93, EU:T:1995:8], paragraph 10). Consequently, the applicant’s application seeking that the order to pay costs cover also the payment of interest at the rate of 8% is inadmissible.

42      It follows from the grounds set out in the present judgment that it is the Council for the main part which has been unsuccessful. Furthermore, in his pleadings the applicant has expressly applied for the Council to be ordered pay the costs. Since the circumstances of this case do not warrant application of the provisions of Article 87(2) of the [former] Rules of Procedure, the Council must bear its own costs and be ordered to pay the costs incurred by the applicant.’

6        By letter of 19 December 2013, the applicant asked the Council, on the basis of an hourly rate of EUR 200, to pay the fees and expenses of his lawyer amounting to EUR 18 330. The applicant stated that that amount was calculated net of value added tax (VAT) and asked to the Council to provide documentary proof that, in the present case, VAT was not applicable.

7        The Council, by letter of 14 February 2014, stated that it disagreed and considered that a maximum amount of EUR 7 000 was justified. It also informed the applicant of its intention to appeal the judgment in Case F‑142/11 and suggested reserving the costs until the matter had been finally decided.

8        By letter of 17 February 2014, the applicant made a new offer in the amount of EUR 14 000 with a view to resolving the dispute amicably. The Council declined that offer and maintained the proposed amount of EUR 7 000 by e-mail of 18 March 2014.

9        After the present application for taxation of costs was brought, the Council submitted its observations on 10 June 2014.

 Forms of order sought and procedure

10      The applicant claims that the Tribunal should:

–        fix the amount of costs payable by the Council in respect of Simpson v Council, F‑142/11, (‘Case F‑142/11’) at EUR 18 330.00 plus VAT at the rate of 21%;

–        determine the amount of costs due in respect of the present taxation of costs proceedings;

–        order the Council to pay the costs of the present proceedings.

11      The Council contends that the Tribunal should fix the amount of costs recoverable by the applicant in Case F‑142/11 at EUR 7 000, including the costs of the present proceedings.

12      As the present case concerns an application for taxation of recoverable costs in Case F‑142/11, it was allocated to the chamber that delivered the judgment in Case F‑142/11.

 Law

 Arguments of the parties

13      The applicant, after referring to the criteria followed with regard to the taxation of costs, argues, as regards the difficulty and importance of Case F‑142/11 from the perspective of EU law, that it essentially concerned whether it was possible for the Council to confer a higher grade on an official through a promotion procedure other than as laid down in Article 45 of the Staff Regulations of the European Union, in the version prior to the entry into force of Regulation (EU, Euratom) No 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union. According to the applicant, the 2004 reform abolished the procedure of classification in a higher grade, so that in Case F‑142/11 the issue was whether that procedure remained valid after the reform and to determine the legal basis for that. In that regard, there was no case-law after 2004 and the lodging of an appeal by the Council against the judgment in F‑142/11 suggested that it was a complex issue.

14      The applicant also claims that the facts of the case were complex. Access to the documents had been problematic and research had been essential in order to clarify the factual background. Understanding and commenting on the statistics annexed to the reply had increased the workload considerably. Accordingly, the drafting of the application and of the reply had involved a substantial amount of work.

15      The applicant argues that the case is of great importance to him, as he was trying to progress in his career on the basis of the same procedures as those followed by his colleagues. He disputes the reasoning of the Council, according to which the costs related to the preparation and drafting of the reply should not be taken into account.

16      The applicant also states that he has voluntarily omitted certain costs, which he considered non-recoverable, such as the costs connected with the preparation and drafting of the letter to the Tribunal of 9 April 2013, since the latter had decided not to include it in the file, as well as the costs connected with the request for assistance in the earlier phase of the application.

17      Finally, the applicant compares his case with that which led to the judgment in Van Neyghem v Council, F‑77/11, EU:F:2012:187, in which the Council had been more generous as regards the recovery of costs, when it had been at fault. According to the applicant, the Council’s approach is totally arbitrary.

18      As regards the difficulty and importance of the case from the perspective of EU law, the Council claims that the applicant’s claim was essentially based on the principle of equal treatment and a manifest error of appraisal, which are both well-known concepts on which there is abundant case-law. Furthermore, the fact that the Council brought an appeal in no way supported the applicant’s argument, since the appeal is based exclusively on the fact that the Tribunal distorted the evidence.

19      The Council also contends that the facts of the case are not complicated. As regards the infringement of the principle of equal treatment, the applicant limited his claim to a comparison with three other officials and subsequently with one single official. With regard to the alleged problems of public access to relevant documents, the applicant himself stated that he did not include these in his statement of costs, thus accepting that they were not essential for the purpose of the proceedings. The Council also challenges the alleged complex research concerning the annexes to the reply. Their analysis, it contends, did not pose any major difficulties. Finally, also according to the Council, the number of documents examined, discussed and attached to the application was not extraordinarily high, and did not exceed the average number of documents submitted in a normal European Union staff case.

20      As regards the second exchange of pleadings, the Council contends that the costs related to that exchange were not essential for the proceedings and are therefore not recoverable, the claims of the applicant being unfounded as they did not raise any issues which could not have been raised already in the application.

21      The Council contends that the applicant did not submit any specific evidence demonstrating the significance of Case F‑142/11 and considers that it is not admissible for the applicant to draw any conclusions from the attitude of the Council in other cases in which the factual and legal circumstances were different.

 Findings of the Tribunal

 Preliminary observations

22      First, under Article 91(b) of the former Rules of Procedure, ‘expenses incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of the representative, if they are essential’ 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 Tribunal and, secondly, to those which were necessary for that purpose (order in Schönberger v Parliament, F‑7/08 DEP, EU:F:2010:32, paragraph 23).

23      Secondly, it is settled case-law that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the extent to which those fees may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, it is not obliged to take account of any national scales of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (orders in X v Parliament, F‑14/08 DEP, EU:F:2009:149, paragraph 22; Schönberger v Parliament, EU:F:2010:32, paragraph 24; and De Nicola v EIB, F‑55/08 DEP, EU:F:2011:155, paragraphs 40 and 41).

24      Thirdly, it is also settled case-law that, in the absence of EU provisions laying down fee scales, the court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings (order in De Nicola v EIB, EU:F:2011:155, paragraph 41).

25      The amount of the recoverable costs in this case is to be assessed in accordance with those considerations.

 Recoverable costs

26      As regards the conditions concerning the nature and purpose of Case F‑142/11 and the difficulty of the case, it must be pointed out that the dispute seemed, by its nature and purpose, to be a staff case without any particular difficulty, in so far as the applicant requested annulment of the decision not to promote him to grade AD 9 after he had passed Open Competition EPSO/AD/113/07 organised for the recruitment of heads of unit at grade AD 9 in the field of translation on the grounds, essentially, of an infringement of the duty to state reasons for the decision, which merely stated that the recruitment of the applicant at grade AD 9 was not in the interest of the service, a reason that the Council itself explained in its defence and at the hearing, and of an infringement of the principle of equal treatment and a manifest error of assessment, both of which concepts are the subject of abundant case-law. The facts did not present any particular difficulty having regard to the documents in the case-file.

27      With regard to the importance of Case F‑142/11 from the point of view of EU law, it must be noted that the questions of law raised are not particularly complex and the dispute is therefore of limited legal significance.

28      With regard to the applicant’s financial interest in Case F‑142/11, it must be noted that he was trying to progress in his career on the basis of the same procedures as those followed by his colleagues, without putting forward any other specific element to support his financial interest, which was therefore of relative importance only.

29      As regards the scale of the work required in the proceedings before the Tribunal, account must be taken of the total number of hours of work that can be judged objectively necessary for the purpose of those proceedings (order in Schönberger v Parliament, EU:F:2010:32, paragraph 29).

30      The applicant suggests an amount for costs and fees of EUR 18 330 which, after deduction of hotel and travel expenses, and on the basis of an hourly rate of EUR 200, would correspond to nearly 90 hours of work.

31      In the present case, it is apparent from the documents in the case-file that the proceedings involved the analysis and preparation of the file as well as two exchanges of pleadings and a hearing, the lawyer already having available to him, moreover, the complaint and the reply to the complaint when analysing the case-file. The Tribunal notes that the action is based on three pleas in law, which are developed in four of the eleven pages of the application, while the reply consists of thirteen pages.

32      Accordingly, in the circumstances of the present case, having regard to the difficulty of the case and the scale of the work required in the proceedings, the volume of work objectively required for the purpose of the proceedings can be fairly assessed at 40 hours.

33      Finally, in relation to the hourly rate of EUR 200, this does not seem unreasonable having regard to the average hourly rate charged in other cases of the same type as in the main proceedings.

34      Furthermore, the applicant correctly argues that, with regard to recoverable expenses, he is entitled to payment of the fees, including VAT, that the Tribunal considers to have been incurred for the purpose of the proceedings, provided that VAT is due on the services of his lawyer. As the applicant is not subject to that tax, he cannot recover the VAT that may have been paid on the services invoiced by his lawyer (orders in De Nicola v EIB, T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP, EU:T:2004:217, paragraph 37, and Missir Mamachi di Lusignano v Commission, F‑50/09 DEP, EU:F:2012:147, paragraph 31). Thus, the VAT that may have been paid on fees held to be necessary represents for the applicant costs incurred for the purpose of the proceedings within the meaning of Article 91(b) of the former Rules of Procedure.

35      Consequently, in view of the above, the amount of the costs that the Council must pay to the applicant with regard to lawyer’s fees must be fixed at EUR 8 000, to be increased by any VAT due on that amount (orders in in Tagaras v Court of Justice, T‑18/89 DEP and T‑24/89 DEP, EU:T:1992:17, paragraph 14, and Meskens v Parliament, T‑84/91 DEP, EU:T:1993:57, paragraph 14).

36      The expenses of EUR 400, invoiced for hotel expenses and travel to Luxembourg (Luxembourg), as they have not been challenged, must stand.

 Costs incurred in connection with the proceedings for taxation of costs

37      Although, unlike Article 100 of the Rules of Procedure, Article 106 of the Rules of Procedure on disputes as to costs, does not provide, as regards judgments or orders closing proceedings, that a decision as to costs in the taxation of costs procedure must be given in the order on taxation of costs, it is clear that if, in an action disputing the costs in the main proceedings, the Tribunal were to adjudicate on the costs in dispute and, separately, on the new costs incurred in the action disputing the costs, it might perhaps subsequently be required to adjudicate on a new dispute concerning the new costs.

38      It follows that there is no need to adjudicate separately on the costs and fees incurred for the purposes of the present procedure (Schönberger v Parliament, EU:F:2010:32, paragraph 46).

39      None the less, it is for the Tribunal, when it sets the amount of the recoverable costs, to take account of all the circumstances of the case up to the time of the adoption of the order on taxation of costs.

40      In the present case, the Tribunal notes that, while it is true that the applicant was obliged to submit an application for taxation of costs, since the Council had refused to pay the fee note presented by the applicant’s counsel, the fact remains that that note does not contain either a description of the tasks carried out by the applicant’s lawyer or an assessment of the working time dedicated to those tasks.

41      Furthermore, it must be noted that an application for taxation of costs is quite standardised by nature and is notable, in principle, by the absence of any difficulty for the lawyer who has already dealt with the substance of the case (orders in France Télévisions v TF1, C‑451/10 P-DEP, EU:C:2012:323, paragraph 32; OCVV v Schräder, C‑38/09 P-DEP, EU:C:2013:679, paragraph 42; and Bogusz v Frontex, F‑5/12 DEP, EU:F:2014:179, paragraph 47).

42      In these circumstances, it is a fair assessment of the costs recoverable in connection with the present taxation of costs proceedings to limit them to EUR 200.

43      It follows from all of the foregoing that the total amount of the costs recoverable by the applicant from the Council in relation to Case F‑142/11 amounts to the sum of EUR 8 600, that sum not taking into account the VAT that the interested party must pay to his lawyer, as referred to in paragraph 34 of the present order.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (First Chamber)

hereby orders:

The total amount of costs to be reimbursed by the Council of the European Union to Mr Simpson by way of recoverable costs in Case F‑142/11 is fixed in the amount of EUR 8 600, to be increased by any value added tax due on that amount.

Luxembourg, 2 December 2014.

W. Hakenberg

 

      R. Barents

Registrar

 

      President


* Language of the case: English.