ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

26 November 2014

Case F‑57/11 DEP

Gustav Eklund

v

European Commission

(Civil service — Procedure — Taxation of costs — Recoverable costs — Necessary costs — Fees paid by an institution to its lawyer — Obligation for an unsuccessful applicant to pay those fees — Effective judicial protection — Right of access to a tribunal)

Application:      for taxation of costs brought in accordance with Article 92(1) of the Rules of Procedure in the version in force at the time (‘the former Rules of Procedure’) by the European Commission following the judgment in Eklund v Commission (F‑57/11, EU:F:2012:145).

Held:      The amount of the costs which the European Commission may recover from Mr Eklund in respect of Case F‑57/11 Eklund v Commission is fixed at EUR 5 709, plus default interest from the date of service of the present order to the date of actual payment, at the rate set by the European Central Bank for its principal refinancing operations in force on the first day of the month of the deadline for payment, increased by three and a half percentage points.

Summary

1.      Judicial proceedings — Costs — Taxation — Recoverable costs — Expenses necessarily incurred by the parties — Concept — 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))

2.      EU law — Principles — Right to effective judicial protection — Enshrined in the Charter of Fundamental Rights of the European Union — Expenses incurred by an institution in proceedings before the Union courts — Order for the other party to reimburse recoverable costs — Lawfulness

(Charter of Fundamental Rights of the European Union, Art. 47, second para.)

1.      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 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.

In that regard, whilst the fact that the institution instructed a number of agents and a 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. Any other assessment which makes the right of an institution 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 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 an assessment 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. On the other hand, whether account should be taken of the involvement of one or more agents alongside the lawyer in question is a matter for the discretion vested in the EU judicature in proceedings for the taxation of costs under Article 91(b) of the Rules of Procedure of the Civil Service Tribunal.

(see paras 34, 35)

See:

Orders in Dietz v Commission, 126/76 DEP, EU:C:1979:158, para. 6, and Commission v Kallianos, C‑323/06 P-DEP, EU:C:2012:49, paras 10 and 11

Orders in Kerstens v Commission, T‑498/09 P-DEP, EU:T:2012:147, para. 20, and Marcuccio v Commission, T‑278/07 P-DEP, EU:T:2013:269, paras 14 and 15

2.      The right of access to a tribunal is a general principle of EU law now laid down in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, which corresponds to Article 6(1) of the European Convention on Human Rights.

Moreover, it is clear from the case-law of the European Court of Human Rights on the interpretation of Article 6(1) that the right of access to a tribunal conferred by that article is a practical and effective right, rather than theoretical or illusory.

In that regard, although the recovery of manifestly excessive expenses from a party ordered to pay the costs may undermine the practical and effective nature of the right of access to a tribunal, first of all, the Union legislature provided, in order to ensure effective access to justice, that those incapable of meeting some or all of the costs associated with legal assistance and representation before the Civil Service Tribunal should be eligible for legal aid; secondly, the rules of procedure before the Tribunal make it possible to recover only expenses necessarily incurred for the purpose of the proceedings.

(see paras 40-42)

See:

Judgment in Review Arango Jaramillo and Others v EIB, C‑334/12 RX-II, EU:C:2013:134, paras 40 and 42