ORDER OF THE GENERAL COURT (First Chamber)
19 October 2011(*)
(Taxation of costs)
In Case T‑389/09 DEP,
Kay Labate, residing in Tarquinia (Italy), represented by I. Forrester QC,
applicant,
v
European Commission, represented by D. Martin and J. Baquero Cruz, acting as Agents,
defendant,
APPLICATION for taxation of costs following the order of the President of the First Chamber of the General Court of 10 January 2011 in Case T‑389/09 Labate v Commission (not published in the ECR),
THE GENERAL COURT (First chamber),
composed of: J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Registry of the Civil Service Tribunal on 22 June 2009, registered as Case F‑64/09, the applicant brought an action for a declaration under Article 232 EC (now Article 265 TFEU) that the Commission unlawfully failed to take a decision on the request that the illness of the applicant’s husband, a former official of the Commission, be recognised as occupational in nature.
2 By order of 29 September 2009, the Tribunal referred the action to the General Court, which was registered at the Registry of the latter on the same date as Case T‑389/09.
3 The written procedure was closed on 14 April 2010.
4 By letter lodged at the Registry of the Court on 10 November 2010, the applicant informed the Court that she wished to withdraw her action for failure to act following the adoption by the Commission, on 6 May 2010, of a decision recognising the illness of her husband as an occupational disease and its confirmation, on 22 October 2010, that it would pay the lump sum to which the applicant was entitled. By the same letter, the applicant requested also that the Commission be ordered to bear the costs.
5 By letter lodged at the Registry of the Court on 19 November 2010, the Commission requested that the applicant be ordered to bear the costs.
6 By order of 10 January 2011 (Case T‑389/09 Labate v Commission, not published in the ECR), the President of the First Chamber of the Court ordered the action for failure to act to be removed from the register and ordered the Commission to pay the costs.
7 By letter of 2 February 2011, the applicant’s lawyer informed the Commission that the total fees and costs relating to Case T‑389/09 amounted to a total of EUR 54 642.07. Acknowledging however that his normal fees are higher on average than those usually accepted by the Court, he invited the Commission to pay EUR 34 500.
8 By letter of 7 February 2011, the Commission contested the amount requested by the applicant’s lawyer and offered to pay a total amount of EUR 4 000.
9 By application lodged at the Registry of the Court on 10 June 2011, the applicant applied for taxation of costs under Article 92(1) of the Rules of Procedure of the Court.
10 By statement lodged at the Registry of the Court on 30 June 2011, the Commission submitted its observations on that application.
11 The applicant claims that the Court should order the Commission to pay her costs in such amount as the Court shall determine reasonable.
12 The Commission submits that the sum of EUR 4 000 as recoverable costs is reasonable.
Law
Arguments of the parties
13 The applicant submits that the amount of EUR 34 500 is a fair and reasonable sum in view of the following considerations.
14 First, it is reasonable in the light of the work that was necessarily incurred for the purpose of this litigation.
15 In this respect, the applicant claims that the correspondence undertaken prior to the application for failure to act was an integral part of the current proceedings before the Court and thus the costs thereof should also be recoverable, since Article 232 EC expressly requires that before an action for failure to act can be brought, the institution must first be called upon to act and be given two months to define its position.
16 The applicant further claims that the costs relating to the procedures undertaken under Articles 90 and 91 of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’) subsequent to the lodging of the action for failure to act were justified in view of the arguments made by the Commission as to the admissibility of the action for failure to act.
17 According to the applicant, the Commission is wrong to suggest that the application was a ‘mere action for failure to act’ which did not require ‘any legal analysis or reasoning’. The amount of time recorded by the applicant’s legal representatives is a true and accurate documentation of the time spent on these proceedings, and covers not just the application itself, but also the other written pleadings, the additional work involved in the transfer of the case from the Tribunal to the Court, as well as the necessary correspondence with the Commission. According to the applicant, it was entirely reasonable for her to take all possible steps to extract a decision from the Commission and to avoid burdening the Court with what should have been a straightforward claim for compensation.
18 Second, the amount requested is reasonable taking into account the importance of the case for the parties. Beyond the applicant’s financial interest in obtaining a compensation for her husband’s incapacity to work and subsequent death, the applicant is seeking also recognition of the true origin of the disease which caused her husband’s death. As such, the case is important both to her and Commission employees exposed in the workplace to the consequences of second-hand smoke.
19 Finally, the amount requested is reasonable in view of the unnecessary delay on the part of the Commission. According to the applicant, had the matters at issue been handled better, the Commission could have significantly reduced the legal effort deployed against it.
20 The Commission submits that the amount requested by the applicant is unreasonable and excessive.
21 As a preliminary remark, the Commission maintains that the action for failure to act brought by the applicant was inadmissible and, therefore, it could not legally and reasonably be claimed that the action had to be brought to avoid wasting ‘even more time’.
22 As to the amount of time recorded by the applicant’s lawyer, the Commission submits the following observations.
23 First, it draws the Court’s attention to the case-law according to which ‘recoverable costs’ do not include fees and costs which are related to the administrative or pre-litigation procedure. Therefore, all the fees and costs mentioned by the applicant’s lawyer in his detailed breakdown which relate to the ‘necessary correspondence with the Commission’ should be excluded from the ‘recoverable costs’. The Commission claims also that the costs relating to the alleged ‘additional work involved in the transfer of the case’ to the Court should also be excluded, since they are the consequence of the wrong choice made by the applicant’s lawyer.
24 Second, in respect of the number of lawyers involved in the litigation, the Commission notes that, according to case-law, the primary consideration is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question.
25 The Commission stresses that the amount claimed only for the drafting of two pleadings, the application and the reply, of which a maximum of five pages are about ‘the law’, amounts to EUR 14 381. This sum far exceeds the total amount of ‘recoverable costs’ the Commission usually bears in cases before the Tribunal, when ordered to bear costs.
26 The Commission concludes that the amount of EUR 4 000 offered by it as ‘recoverable costs’ is reasonable.
Findings of the Court
Definition of recoverable costs
27 Under Article 92(1) of the Rules of Procedure, ‘[i]f there is a dispute concerning the costs to be recovered, the General Court hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie’.
28 According to Article 91(b) of the Rules of Procedure, ‘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’, are to be regarded as recoverable costs.
29 It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, second, to those which are necessary for that purpose (order in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13).
30 According to established case-law, by ‘proceedings’ Article 91 of the Rules of Procedure refers only to proceedings before the Court and does not include any prior stage (order of the Court in Case C‑294/90 DEP British Aerospace v Commission [1994] ECR I‑5423, paragraph 12; order in Cases T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP De Nicola v EIB [2001] ECR‑SC I‑A‑49 and II‑185, paragraph 30 and the case-law cited therein). It follows that, in the present case, the costs relating to the correspondence calling on the Commission to act, including the formal request to act pursuant to Article 232 EC made on 20 February 2009, do not constitute recoverable costs. Indeed, this Court has already held that the fact that such a request constitutes a condition for the admissibility of the action for failure to act does not make it an act of the judicial proceedings and hence it does not make the costs relating to it recoverable (order in Joined Cases T‑79/96 DEP and T‑260/97 DEP Camar v Council and Commission, not published in the ECR, paragraph 52).
31 Furthermore, the costs relating to the procedures undertaken by the applicant under Articles 90 and 91 of the Staff Regulations, subsequent to the lodging of the action for failure to act, are not recoverable either because they do not concern judicial proceedings (orders in Case T‑84/91 DEP Meskens v Parliament [1993] ECR II‑757, paragraph 14, and De Nicola v EIB, cited in paragraph 30 above, paragraph 30).
Assessment of recoverable costs
– Lawyer’s fees
32 It has consistently been held that the Community 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, the Community judicature 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 (see order in Airtours v Commission, cited in paragraph 29 above, paragraph 17 and the case-law cited therein).
33 It is also settled case-law that, in the absence of Community 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 Community 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 (see order in Airtours v Commission, cited in paragraph 29 above, paragraph 18 and the case-law cited therein).
34 Moreover, it is for the Court to take into account primarily the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (see order of 24 June 2010 in Case T‑66/04 DEP Gogos v Commission, not published in the ECR, paragraph 19 and the case-law cited therein).
35 It is according to those criteria that the amount of lawyer’s fees which are recoverable is to be assessed in the present case.
36 First, with regard to the purpose and nature of the proceedings and their significance from the point of view of Community law, it must be recalled that the action at issue was an action for failure to act whose stated objective was to put pressure on the Commission to adopt a decision on the request for the illness of the applicant’s husband to be recognised as occupational in nature. The significance of this action from the point of view of Community law is limited since the sole legal issue presenting a certain novelty which the applicant had to address was the issue relating to the admissibility of the action, that is the question whether a person to whom the Staff Regulations apply is entitled to bring an action for failure to act under Article 232 EC.
37 Second, with regard to the difficulties presented by the case and the amount of work required in the course of the proceedings, it must be observed as a general matter that the case did not concern complex factual issues since its factual aspect revolved only around the question whether the Commission had failed to act. At the same time, account must be taken of the fact that the legal question identified above presented a certain novelty, which the applicant had to address, relating to the admissibility of her action for failure to act.
38 As the file reveals, the work undertaken by the applicant’s lawyer for the purposes of the proceedings before the Court consisted mainly in the submission of two pleadings, the application and the reply. No oral hearing took place.
39 The application submitted was nine pages long, of which seven pages are devoted to a restatement of the procedural history of the case which could already be found in previous documents submitted to the Commission and in the application before the Tribunal in Case F‑77/07 Labate v Commission, and two pages are devoted to the legal analysis concerning the Commission’s failure to act.
40 The reply is eight pages long of which six pages are devoted to the question of the admissibility of the action for failure to act and the question of costs.
41 Account also must be taken of the time necessarily devoted to the study of the Tribunal’s order of 29 September 2009 referring the action for failure to act to the Court, raising the question of the admissibility of such action, as well as, to a minor extent, to the time devoted to the study of the Commission’s defence.
42 The applicant’s lawyer submitted also two letters to the Court, dated 23 March and 31 March 2010 respectively, whereby he submitted certain documents and requested that they be included in the file of the case. The Court considers that the submission of these letters, despite the fact that its aim was to corroborate the applicant’s argumentation regarding the admissibility of her action for failure to act, was not objectively necessary for the purpose of the proceedings. The applicant’s lawyer submitted also the letter lodged at the Registry of the Court on 10 November 2010 informing the latter about the wish of the applicant to withdraw the application for failure to act. This letter, necessary for the purpose of the proceedings, did not contain any analysis and, as regards the question of costs, it referred to the arguments contained in the application.
43 Third, as regards the applicant’s financial interest in the proceedings, it must be recalled that the alleged failure to act concerned the adoption by the Commission of a decision on the request for the illness of the applicant’s husband to be recognised as occupational in nature. Such recognition would open the way for the applicant to benefit from her husband’s insurance against the risk of occupational disease provided for under Article 73 of the Staff Regulations. The applicant’s financial interest was therefore significant.
44 In view of the abovementioned considerations, the Court does not consider that the 159.50 hours of work claimed by the applicant’s lawyer is objectively necessary for the purpose of the proceedings before it. It would be a fair assessment of the volume of the work objectively necessary to set the total number of hours of work at 50 including, inter alia, the amount of work necessary for the purpose of the present application for taxation of costs.
45 The Court considers also that, in the circumstances of the case, the average hourly fee of EUR 215 claimed by the applicant’s lawyer in his correspondence with the Commission, and not contested by the latter, is justified. Hence, in respect of legal fees, the amount of costs recoverable by the applicant from the Commission is fixed at EUR 10 750.
– Disbursements
46 As regards the disbursements relating to the judicial proceedings, it appears from the relevant statement submitted by the applicant’s lawyer that the amount of EUR 555.07 claimed by him includes disbursements that took place outside the period concerned by the judicial proceedings at issue. These disbursements relate among others to printing and facsimile transmissions that, according to the abovementioned statement, took place prior to the introduction of the action for failure to act, that is prior to 22 June 2009, as well as to a ‘taxi delivery to Luxembourg’ that took place on 3 December 2008. Therefore, as regards the disbursements, the amount of costs recoverable by the applicant from the Commission is fixed at EUR 250.
47 It follows from the foregoing that the total amount of costs to be reimbursed by the Commission must be fixed at the overall sum of EUR 11 000.
48 Since in determining the recoverable costs, the Court has taken account of all the circumstances of the case until the time of such determination, it is not necessary to give a separate decision on the costs incurred by the parties in connection with these taxation of costs proceedings (order in Case T‑80/97 DEP Starway v Council [2002] ECR II‑1, paragraph 39 and the case-law cited therein).
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
The total amount of the costs to be reimbursed by the Commission to the applicant in Case T‑389/09 is fixed at EUR 11 000.
Luxembourg, 19 October 2011.