ORDER OF THE CIVIL SERVICE TRIBUNAL
(Full Court)

27 September 2011

Case F‑55/08 DEP

Carlo De Nicola

v

European Investment Bank (EIB)

(Civil service – Procedure – Taxation of costs – Recoverable costs – Essential costs – Fees paid by an institution to its lawyer – Obligation for an unsuccessful applicant to pay those fees – Principle of equal treatment – Effective judicial protection – Conditions)

Application:      for taxation of costs, lodged by the European Investment Bank (EIB) following the judgment of the Civil Service Tribunal of 30 November 2009 in Case F‑55/08 De Nicola v EIB, now on appeal before the General Court of the European Union (Case T‑37/10 P).

Held:      The amount of the costs recoverable by the EIB in Case F‑55/08 De Nicola v EIB is fixed at EUR 6 000.

Summary

1.      Procedure – Costs – Taxation – Recoverable costs – Expenses necessarily incurred by the parties – Fees paid by an institution to its lawyer – Conditions for reimbursement

(Statute of the Court of Justice, Art. 19, first para.)

2.      Procedure – Costs – Taxation – Elements to be taken into consideration

(Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the Civil Service Tribunal, Art. 91(b))

1.      In a case where an applicant is ordered to pay all or part of the costs incurred by an institution, it is for that institution, where it proposes to recover the fees paid to its lawyer, to prove that those fees were ‘essential costs’ for the purpose of the proceedings. In that regard, an institution might adduce evidence of the necessity to instruct a lawyer by establishing, in particular, that for economic and temporary reasons connected, inter alia, with a specific increase in workload or unforeseen absences of the members of its legal service, which would normally be able to represent the institution in legal proceedings, it was forced to obtain the assistance of a lawyer. The same would apply to an institution which, where an applicant has brought actions which are substantial in volume and/or in number, establishes that if it had not instructed a lawyer it would have been obliged to devote a disproportionate part of the resources of its services to dealing with those actions.

On the other hand, an institution cannot claim reimbursement of all or part of the fees paid to its lawyer where it merely explains that it has chosen, for budgetary or organisational reasons, to relieve its legal service of the burden of dealing with civil service litigation. While an institution is free to make such a choice, the consequences of its doing so cannot be borne by its staff, where they are ordered to pay the costs, without the risk that there will be a breach of the principle of equal access to justice between the staff of the institutions whose legal service represents those institutions before the Union Courts and the staff of institutions which systematically instruct lawyers.

(see paras 37-39)

2.      It is for the Union court to determine the amount up to which a lawyer’s fees can 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.

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. When determining the amount of the recoverable fees, the court must also have regard to the ability to pay of the party ordered to pay the costs, in order to ensure that that party’s right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights, is not disproportionately affected. Finally, the amount of the 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 Civil Service Tribunal, by the legal services of the institution.

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. It follows that in cases where an institution has instructed a lawyer, the total number of hours of work on the part of that lawyer that can be deemed to be objectively essential for the purpose of the proceedings must be evaluated, in principle, at one third of the hours that that lawyer would have needed to spend had he not been able to rely on the work previously done by the legal services of the institution.

That proportion might none the less be fixed at a higher level, in particular where an institution, when confronted with an applicant who has brought a large number of actions of a manifestly abusive nature, was placed in the situation of having to entrust to a lawyer all or part of the management of those disputes, including during the pre-litigation stage, in order to avoid a disproportionate use of the resources of its legal service.

(see paras 40-43)

See:

9 September 2002, T‑182/00 DEP Pannella v Parliament, paras 28 and 29