ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL
(Third Chamber)
22 March 2012
Case F‑5/08 DEP
Markus Brune
v
European Commission
(Procedure — Taxation of costs — Costs actually incurred — Lawyer’s fees — Applicant practising as lawyer)
Application: for taxation of recoverable costs under Article 92 of the Rules of Procedure, in which Mr Brune seeks taxation of the costs in Case F‑5/08 Brune v Commission, under Article 92(1) of the Rules of Procedure.
Held: The amount of the costs recoverable by Mr Brune in Case F‑5/08 Brune v Commission is fixed at EUR 11 140.05.
Summary
1. Procedure — Costs — Recoverable costs — Whether costs applied for were actually incurred — Burden of proof
(Rules of Procedure of the Civil Service Tribunal, Art. 91(b))
2. Procedure — Costs — Taxation — Elements to be taken into consideration
(Rules of Procedure of the Civil Service Tribunal, Art. 91(b))
3. Procedure — Costs — Taxation — Recoverable costs — Travel expenses incurred by a lawyer in order to attend the hearing
(Rules of Procedure of the Civil Service Tribunal, Art. 91(b))
4. Procedure — Costs — Recoverable costs — Charging by lawyer for time spent travelling to the hearing
(Rules of Procedure of the Civil Service Tribunal, Art. 91(b))
5. Procedure — Costs — Taxation — Recoverable costs — Office and telecommunication costs
(Rules of Procedure of the Civil Service Tribunal, Art. 91(b))
6. Procedure — 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. If the defendant institution considers that the applicant and his lawyer have fraudulently conspired to fix a notional amount of costs applied for, it must inform the competent national professional authorities of its suspicions in order to enable them to assess, in full knowledge of the facts, whether that conduct is consistent with the relevant ethical rules. It is true that the onus is on the applicant to produce supporting documents such as to prove that the costs which he seeks to have reimbursed have actually been incurred, but it may be inferred from the fact that a lawyer brought the application, attended the hearing and produced various written documents that he did indeed provide the services necessary for the proceedings before the Civil Service Tribunal. Consequently, the applicant is entitled to ask the Tribunal to determine what amount of the fees charged to him by his lawyer may be recovered from the party ordered to pay the costs.
(see paras 18-19)
See:
16 May 2007, F‑100/05 DEP Chatziioannidou v Commission, para. 19; 10 November 2009, F‑14/08 DEP X v Parliament, para. 21; 8 November 2011, F‑92/09 DEP U v Parliament, paras 37 and 38
2. The Union judicature is not empowered to tax the fees payable by the parties to their own lawyers, but only to determine the amount of those fees which may be recovered from the party ordered to pay the costs. In the absence of Union provisions laying down fee scales, the court must assess the amount of recoverable fees by reference to the number of hours required, on an objective view, by a lawyer to deal with the case. In order to do so, it must, in principle, take 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. Thus, the hourly rate accepted may be that of a specialist lawyer where the dispute might appear, to a reasonably well-informed party, to raise particularly difficult legal questions, or if the dispute was particularly important to that party, warranting the use of a specialist lawyer. However, the Union judicature is not obliged to take account of any national scales of lawyers’ fees or any agreement in relation to fees concluded between the party concerned and his agents or advisers.
(see paras 18, 21-23)
See:
Chatziioannidou v Commission, para. 19; 1 July 2009, F‑6/07 DEP Suvikas v Council, para. 18; U v Parliament, para. 38
3. Travel expenses which a lawyer incurs for travel from his chambers to the hearing before the Civil Service Tribunal may be reimbursed. Given that it is difficult to ascertain the cost incurred by a lawyer when he travels using his own car, since that involves taking account of petrol consumption and the vehicle’s depreciation, the amount of travel expenses may be determined by reference to the average price of a first class rail ticket.
(see para. 35)
See:
8 July 2004, T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP De Nicola v EIB, para. 40
Chatziioannidou v Commission, para. 30
4. As regards the charging of hours spent travelling by a lawyer, it is not unreasonable for a lawyer to ask to be paid for time spent en route even if the time spent in travelling to the hearing cannot be charged at the same rate as an hour worked.
(see para. 36)
5. Telecommunication costs incurred by a lawyer are not regarded as excessive provided that the amount, added to the office costs, does not exceed 5% of the recoverable fees.
(see para. 38)
See:
26 January 2006, T‑79/96 DEP and T‑260/97 DEP Camar v Council and Commission, para. 71
Suvikas v Council, para. 41
6. Although, unlike Article 86 of the Rules of Procedure, Article 92 of the Rules of Procedure of the Civil Service Tribunal, 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 proceedings based on Article 92 of the Rules of Procedure 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.
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. Thus the Tribunal may determine the amount of essential costs, within the meaning of Article 91 of the Rules of Procedure, arising from the procedure as to costs, in order to avoid having once again to adjudicate subsequently on a new dispute concerning the new costs.
(see paras 40-41)
See:
27 September 2011, F‑55/08 DEP De Nicola v EIB, paras 51 and 52; U v Parliament, paras 63 and 64