ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Single Judge)

27 June 2013

Case F‑11/09 DEP

Luigi Marcuccio

v

European Commission

(Civil service — Procedure — Taxation of costs)

Application:      for taxation of recoverable costs under Article 92 of the Rules of Procedure, in which the European Commission applied to the Tribunal for taxation of the costs in Case F‑11/09 Marcuccio v Commission under Article 92(1) of the Rules of Procedure.

Held:      The total amount of costs to be reimbursed by Mr Marcuccio to the European Commission in respect of the recoverable costs in Case F‑11/09 Marcuccio v Commission is fixed at EUR 3 720.

Summary

1.      Judicial proceedings — Costs — Taxation — Submission of application — Notification to the lawyer who represented the other party in the main action — Lawfulness — Condition

(Statute of the Court of Justice, Art. 19, third para.; Rules of Procedure of the Civil Service Tribunal, Art. 92(1))

2.      Judicial proceedings — Costs — Taxation — Submission of application — Obligation to produce evidence in support of the application at the initial contact stage preceding its submission — None

(Rules of Procedure of the Civil Service Tribunal, Art. 92(1))

3.      Judicial proceedings — Costs — Taxation — Recoverable costs — Expenses necessarily incurred by the parties — Definition — Fees paid by an institution to its lawyer — Included

(Statute of the Court of Justice, Art. 19, first para., and Annex I, Art. 7(1); Rules of Procedure of the Civil Service Tribunal, Art. 91(b))

4.      Judicial proceedings — Costs — Taxation — Elements to be taken into consideration — Lawyer’s fees relating to work carried out prior to the application to the Union court — Included

(Rules of Procedure of the Civil Service Tribunal, Art. 91(b))

5.      Judicial proceedings — Costs — Recoverable costs — Costs incurred in the taxation of costs procedure — No need to adjudicate

(Rules of Procedure of the Civil Service Tribunal, Arts 86, 91 and 92)

1.      The rule laid down in the third paragraph of Article 19 of the Statute of the Court of Justice, that the parties must be represented by a lawyer in proceedings before the Courts of the Union, applies not only to the main proceedings in civil service cases, but also to related procedures such as applications for taxation of costs.

That being so, the Civil Service Tribunal cannot be criticised for having sent an application for taxation of costs to a party’s lawyer where that party was represented by that lawyer in the main proceedings. The party having thus been given the opportunity to submit its observations in accordance with Article 92(1) of the Tribunal’s Rules of Procedure, the audi alteram partem rule was fully observed.

(see paras 17-18)

2.      In respect of a dispute as to the costs, within the meaning of Article 92(1) of the Rules of Procedure of the Civil Service Tribunal, none of the provisions of those Rules of Procedure requires a party to submit documentary evidence in support of its claims at the initial contact stage preceding the submission of an application for taxation of costs.

(see para. 28)

3.      It follows from Article 91(b) of the Rules of Procedure of the Civil Service Tribunal that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Civil Service Tribunal and, second, to those which were necessary for that purpose.

In that regard, as is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice, applicable before the Civil Service Tribunal pursuant to Article 7(1) of Annex I to that Statute, the institutions are free to have recourse to the assistance of a lawyer. The latter’s remuneration is therefore covered by the concept of expenses necessarily incurred for the purposes of the proceedings, without the institution being required to show that such assistance was objectively warranted.

Therefore, whilst the fact that an institution instructed an external lawyer has no impact on the possible recoverability of those costs, since there is nothing to preclude such recovery in principle, it may have an impact on the determination of the amount of costs incurred for the purposes of the proceedings which may ultimately be recovered.

(see paras 35-36)

See:

23 March 2012, T‑498/09 P-DEP Kerstens v Commission, para. 13; 28 May 2013, T‑278/07 P-DEP Marcuccio v Commission, para. 14

26 April 2010, F‑7/08 DEP Schönberger v Parliament, para. 23

4.      The Union judicature is not empowered to tax the fees payable by the parties to their own lawyers, but to determine the amount of those fees which 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.

Moreover, in the absence of Union 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 Union 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.

Finally, the amount of an institution’s lawyer’s fees that are recoverable cannot be evaluated without taking into consideration the work carried out, even before the matter was brought before the Tribunal, by the legal services of the institution concerned. Since the admissibility of an action is subject to the prior introduction of a complaint and its rejection by the appointing authority, the legal services of the institution are in principle involved in dealing with disputes even before such disputes are brought before the Tribunal.

(see paras 37-39)

See:

10 November 2009, F‑14/08 DEP X v Parliament, para. 22; Schönberger v Parliament, para. 24; 27 September 2011, F‑55/08 DEP De Nicola v EIB, para. 41

5.      Unlike Article 86 of the Rules of Procedure of the Civil Service Tribunal, Article 92 of the Rules of Procedure, on disputes as to costs, does not provide that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. Indeed, if the Tribunal, adjudicating in proceedings based on Article 92 of the Rules of Procedure on a dispute concerning the costs of main proceedings, 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.

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. Consequently, the Tribunal may determine the amount of the costs associated with the costs procedure which were essential within the meaning of Article 91 of the Rules of Procedure, in order to avoid being required subsequently to adjudicate on a new dispute concerning the new costs.

(see paras 48-49)

See:

Schönberger v Parliament, para. 45; 22 March 2012, F‑5/08 DEP Brune v Commission, para. 41