ORDER OF THE GENERAL COURT (Third Chamber)
24 November 2017 (*)
(Civil service — Procedure — Taxation of costs — Representation of an institution by a lawyer — Recoverable costs)
In Case T‑821/16 DEP,
DO, a former member of the temporary staff of the European Securities and Markets Authority, residing in Mittainville (France), represented by S.A. Pappas, lawyer,
applicant,
v
European Securities and Markets Authority (ESMA), represented by R. Vasileva Hoff, acting as Agent, and by D. Waelbroeck and A. Duron, lawyers,
defendant,
APPLICATION for taxation of costs, following the judgment of the Civil Service Tribunal of 26 March 2015, DO v ESMA (F‑32/14, EU:F:2015:26)
THE GENERAL COURT (Third Chamber)
composed of S. Frimodt Nielsen, President, I.S. Forrester and E. Perillo (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant in the main proceedings (‘the applicant’) was recruited by the European Securities and Markets Authority (ESMA), with effect from 16 February 2011, as a member of the temporary staff within the meaning of Article 2(a) of the Conditions of Employment of Other Servants of the European Union in the version then in force (‘the CEOS’), to a post in the assistants’ function group (AST), at grade AST 8, for a renewable period of three years, and was assigned to the human resources department of the Operations Division as a senior officer.
2 The applicant’s staff report for 2011 (‘the 2011 staff report’) places her performance, overall, as assessed by Mr V. in his capacity as reporting officer, at level I (on a scale of 0 to IV), corresponding to the level of a member of staff who, overall, has provided service that is ‘below expectations’, or ‘seldom exceeds’ the desired results or who has not ‘sustained adequate improvement ... since the last performance review’. In his general assessment, the reporting officer stated that the applicant needed to ‘improve her prioritisation, planning and organisation’ and ‘managing staff expectations, especially in [ESMA’s] very heavily regulated HR environment’. The staff report contains other statements to that effect.
3 That being said, in the present case, it suffices to note, as is apparent from the documents in the case file, that on 7 August 2013, the applicant, having been informed on 1 August 2013 of the recommendation by her immediate superior and reporting officer, Mr V., that her temporary contract should not be renewed, submitted a request to the Executive Director, in her capacity as appeal assessor, concerning the finalisation and revision of her 2011 report, which was rejected by the Executive Director by email on 13 August 2013.
4 In the meantime, and almost at the same time, in the staff report for 2012 (‘the 2012 staff report’), finalised on 1 August 2013, the applicant’s reporting officer and immediate superior, Mr V., places the applicant’s performance at level II (on a scale of I to V), corresponding to level I (on a scale of 0 to IV) in the reporting exercise for the previous year. While observing that in the first half of the year the applicant had ‘continued to recruit with a good rythm [sic]’, the reporting officer concludes as follows:
‘… the issues raised in the [2011] staff report on [the applicant’s] organisational skills did not improve as expected …’
5 In those circumstances, after receiving, on 8 August 2013, comments by the applicant on Mr V.’s recommendation not to renew her temporary contract, the Executive Director, acting as ESMA’s authority empowered to conclude contracts of employment (‘the AECCE’) took the decision on 13 August 2013 not to renew the applicant’s contract as a member of the temporary staff (‘the decision of 13 August 2013’).
6 By application received at the Registry of the Civil Service Tribunal on 1 April 2014, the applicant sought the annulment of the decision of 13 August 2013 and of her staff reports for 2011 and 2012, and an order that ESMA should pay compensation for the non-material damage which she claims to have suffered.
7 By judgment of 26 March 2015, DO v ESMA (F‑32/14, EU:F:2015:26), the applicant’s name having been anonymised to the acronym DO, the Civil Service Tribunal rejected the application and ruled that the applicant was to bear her own costs and to pay those incurred by ESMA. Given that no appeal was brought against that judgment, it is consequently res judicata.
8 On 26 November 2015, ESMA sent a letter to the applicant claiming EUR 16 765.63 as reimbursement of its costs in Case F‑32/14, inviting her to submit her comments on that claim by 4 January 2016 at the latest, and declaring itself open to any proposal on her part concerning the modalities and timing of payment.
9 By letter of 28 January 2016, the applicant disputed the amount claimed, arguing, inter alia, that, in normal circumstances, legal fees in a case such as Case F‑32/14 should not exceed the amount of EUR 7 000 to EUR 8 000, and requesting that ESMA send her a ‘detailed analysis’ of those costs.
10 By letter of 8 March 2016, ESMA withdrew its claim for reimbursement of the costs, in the amount of EUR 1 093.50, incurred by the Head and the Team Leader of the human resources department in attending the hearing in Case F‑32/14. The amount claimed in that letter was therefore EUR 15 672.13, payable in six instalments. The annex to that letter included, inter alia, the fee notes of ESMA’s lawyers of 29 September 2014 and of 27 February 2015, in the amount of EUR 7 250 and EUR 7 871.13 respectively.
11 By letter of 4 April 2016, the applicant, noting, inter alia, that the fee notes referred to above contained no reference to the number of lawyers involved in Case F‑32/14, the number of hours necessary and the hourly rate applied, submitted a counter-offer consisting in reimbursing the amount of EUR 7 500, in four instalments, within one year.
12 By letter of 13 June 2016, ESMA withdrew its claim for the reimbursement of costs, in the amount of EUR 551, incurred by its agent in attending the hearing in Case F‑32/14. The amount claimed was therefore EUR 15 121.13. On the same day, ESMA sent a table to the applicant which set out in detail the dates and the number of hours dedicated, by each lawyer, to that case.
13 No agreement was reached on the amount of recoverable costs. The applicant nonetheless paid the invoices sent by ESMA in the amount of EUR 7 500.
Procedure and forms of order sought
14 By document lodged at the Court Registry on 22 November 2016, ESMA submitted the present application for taxation of costs pursuant to Article 170 of the Rules of Procedure of the General Court. That case was registered under number T‑821/16 DEP. By document lodged at the Court Registry on 12 January 2017, the applicant submitted her observations on that application.
15 ESMA claims that the Court should:
– fix the amount of recoverable costs in Case F‑32/14 at EUR 15 121.13;
– order the applicant to pay the costs of the present proceedings for taxation of costs.
16 The applicant contends that the Court should:
– principally, reject the present application relating to the fees and expenses of ESMA’s external counsel in its entirety or, in any event, tax the recoverable costs in the amount that she would have been required to pay if ESMA had been represented by its agents;
– consequently, order the total or partial restitution of the amount of EUR 7 500 already paid to ESMA;
– in the alternative, fix the amount of recoverable costs in Case F‑32/14 at EUR 7 500;
– order ESMA to pay the costs of the present proceedings for taxation of costs, and fix the costs of these proceedings.
Law
The recoverability of the costs
17 At the outset, it should be recalled that, under Article 140(b) of the Rules of Procedure of the General Court, the expenses necessarily incurred by the parties for the purposes of the proceedings are regarded as recoverable costs, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers.
18 It follows from that provision that the recoverable costs are limited to those incurred for the purposes of the proceedings before the General Court and to those which were necessary for those purposes (order of 28 January 2014, Marcuccio v Commission, T‑366/10 P-DEP, not published, EU:T:2014:63, paragraph 32).
19 In the present case, the total amount of the costs for which ESMA is claiming payment corresponds to the remuneration of the lawyers who assisted ESMA in Case F‑32/14.
20 The applicant therefore submits that those costs are not recoverable, arguing that ESMA’s recourse to the assistance of an external lawyer, in Case F‑32/14, was not necessary.
21 However, that argument cannot prosper. Indeed, it is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union — which provides that the institutions of the Union are to be represented before the Court by an agent appointed for each case, who may be assisted by an adviser or a lawyer — applicable before the General Court pursuant to the first paragraph of Article 53 of that Statute, that, in the context of a dispute which concerns them, the EU institutions are free to have recourse to the assistance of a lawyer. In accordance with well-established case-law, a lawyer’s remuneration is covered by the concept of expenses necessarily incurred for the purpose of the proceedings, without the institution being required to show that such assistance is objectively warranted (see order of the General Court of 28 January 2014, Marcuccio v Commission, T‑366/10 P-DEP, not published, EU:T:2014:63, paragraph 33 and the case-law cited).
22 Therefore, 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 ultimately constitute a 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 a task 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 (order of 28 May 2013, Marcuccio v Commission, T‑278/07 P-DEP, EU:T:2013:269, paragraph 15).
23 On the other hand, whether account, in financial terms, should be taken of the involvement of one or more agents in addition to the lawyer on whom the institution concerned has conferred the authority to represent it, pursuant to Article 140(b) of the Rules of Procedure, is a matter for the discretion vested in the EU judicature in proceedings for the taxation of costs (see orders of 28 May 2013, Marcuccio v Commission, T‑278/07 P-DEP, EU:T:2013:269, paragraph 15, and of 28 January 2014, Marcuccio v Commission, T‑366/10 P-DEP, not published, EU:T:2014:63, paragraph 34).
24 In the light of the foregoing considerations, the sum of EUR 15 121.13 that ESMA is claiming in the present case for costs incurred in Case F‑32/14 is indeed recoverable.
The extent of the Court’s discretion and the necessity of the costs incurred
25 According to case-law, in the absence of provisions of EU law 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 EU law as well as 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 (order of 28 January 2014, Marcuccio v Commission, T‑366/10 P-DEP, not published, EU:T:2014:63, paragraph 36).
26 Furthermore, in order to make an assessment, on the basis of the criteria listed in paragraph 25 above, as to whether the expenses actually incurred for the purposes of the proceedings were in fact necessary, the applicant must provide specific information. Whilst the absence of such information does not prevent the Court from fixing, on the basis of an equitable assessment, the amount of recoverable costs, it nonetheless places it in a situation where its assessment of the applicant’s claims must necessarily be strict (see order of 28 January 2014, Marcuccio v Commission, T‑366/10 P-DEP, not published, EU:T:2014:63, paragraph 38).
27 In the present case, with regard to, in the first place, the nature and subject matter of the proceedings, it must be noted that, whilst the action in the main proceedings did seek annulment of three decisions, namely the decision of 13 August not to renew the applicant’s temporary contract and the 2011 and 2012 staff reports (see paragraphs 6 and 7 above), those three decisions were closely linked. The decision of 13 August 2013 is based in fact on the two reports mentioned above, which overlap to a large extent, as the applicant continued to carry out the same managerial duties during the two-year period covered by those reports. Therefore, the purpose of the complaints raised in respect of the two staff reports was merely to obtain the annulment of the decision of 13 August 2013.
28 As for the five pleas put forward, in the main proceedings, they raised no unprecedented or complex questions of law or of fact, as shown by the judgment in that case (see paragraph 7 above).
29 Indeed, as regards the first plea, alleging infringement of essential procedural requirements and of the rights of the defence, and composed of two parts, the Civil Service Tribunal rejected the first part relating to the delay in drawing up the 2011 staff report. In that regard, the Tribunal notes, in essence, that although the delay in finalising the 2011 report was indeed attributable, primarily, to the Executive Director whose signature, as appeal assessor, was required, the fact remains that the applicant contributed significantly to the procedural failure in question by not taking the necessary steps to finalise the 2011 staff report within the relevant time limits, as her immediate superior had specifically asked her to do. The Civil Service Tribunal therefore concluded on that basis that the delay at issue could not have had any negative impact on the applicant’s performance in 2012, as she could not have been unaware of the professional weaknesses alleged against her by the reporting officer in the draft 2011 report. The second part, alleging failure to give adequate reasons in the 2011 and 2012 staff reports, on account of the inconsistencies between the general assessments and the specific performance assessments, was rejected on the basis of an analysis of the various assessments in those reports.
30 As regards the second plea, alleging infringement of the internal guidelines and the principle of equal treatment, the Civil Service Tribunal was able to confine itself, in the judgment in the main proceedings, to declaring that the applicant had not proved in what way those directives prohibited, as she maintained, reliance on quantitative general assessments.
31 As for the third and fourth pleas alleging, first, a manifest error of assessment and error of fact, and, second, infringement of the duty to have regard for the interests of its staff in so far as ESMA had not duly taken into account, in the reasons given in the contested acts, the applicant’s heavy workload during the 15 months following the establishment of ESMA, they did not raise any particular difficulty either.
32 Finally, regarding the applicant’s allegation, in support of the fifth plea, of a breach of the right to good administration, according to which, in the 2012 staff report, she was treated in an unfair and biased manner on account of her involvement as a witness in a case of psychological harassment, the Civil Service Tribunal, after examining the arguments raised by the applicant and analysing the content of that staff report, was easily able to conclude that no connection could be made between the abovementioned witness statement and the general assessment of the applicant’s professional performance.
33 Therefore, as a whole, the purpose and subject matter of the dispute in the main proceedings raised no particular difficulty.
34 In the second place, as regards the financial interests which the parties had in the proceedings, it must be concluded that they are certainly important, in so far as the renewal of the applicant’s temporary contract was central to the dispute.
35 In the third place, it is clear from the circumstances set out in paragraphs 28 to 33 above that the dispute was only of minimal significance as regards the application and the interpretation of EU law.
36 In the fourth place, as regards the amount of work that the proceedings at issue created for ESMA, it is claiming in the present case the amount of EUR 15 121.13 corresponding, in its entirety, to the fees and expenses of its two lawyers.
37 That being said, it should be recalled at the outset that the EU judicature is authorised, not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs (see order of 28 January 2014, Marcuccio v Commission, C‑366/10 P-DEP, not published, EU:C:2014:63, paragraph 45 and the case-law cited).
38 In the present case, for the purpose of providing evidence for the amount of its claim for costs, ESMA submitted to the Court copies of its lawyers’ invoices of 29 September 2014 and 27 February 2015, in the amount of EUR 7 250 and EUR 7 871.13, with a list of fees and expenses, and a timesheet containing a detailed breakdown of the hours worked in the case in the main proceedings, from which it is apparent that a total of 69 hours was spent on that case. In its application for taxation of costs, ESMA explained that the hourly rate applied was EUR 300 for a partner and EUR 200 for an associate.
39 In the light of the analysis of the criteria relevant to the determination of recoverable costs, recalled in paragraphs 25 and 26 above, while the hourly rate of ESMA’s lawyers appears appropriate, the number of hours which they state that they have devoted to the case in the main proceedings does not. For the reasons set out in paragraphs 26 to 35 above, and in the light, in particular, of the fact that the dispute in the main proceedings raised no particular difficulty and was only of minimal importance from the point of view of compliance with EU law, the analysis of the application and the preparation of the defence did not objectively entail a workload corresponding to the 53.5 hours stated in that regard in the timesheet (see paragraph 38 above). Similarly, the 15.5 hours spent in preparation for and attendance at the hearing do not appear to be objectively warranted. Therefore, it is more appropriate to consider that only 38 of the 69 hours devoted to the case were objectively necessary for the work to be carried out and may therefore be treated as recoverable costs.
40 As for the expenses invoiced, in the amount of EUR 621.13, it is apparent from the breakdown in the annex to the invoice of 27 February 2015 (see paragraph 37 above) that that sum includes the amount of EUR 315 corresponding to the travel expenses incurred for the purpose of the attendance of one of the lawyers at a meeting in Paris, at ESMA’s headquarters, in order to prepare for the hearing. In so far as those costs, incurred in respect of a meeting held at the defendant’s headquarters, do not appear to be objectively necessary for the purpose of preparing for the hearing, they cannot be regarded as recoverable costs. By contrast, the amount of EUR 307, corresponding to the travel and subsistence expenses relating to participation at the hearing, appears appropriate.
41 Therefore, and without underestimating the significance of the work done by the lawyers in drafting the defence and preparing for the hearing, the recoverable costs in the main proceedings can be assessed on an equitable basis at a total of EUR 8 407.
The parties’ claims for costs of the present proceedings
42 It should be recalled that under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. If there is a dispute concerning the costs, the party concerned may apply, pursuant to Article 170(1) of those rules, to the General Court for a ruling on taxation of costs.
43 As the purpose of the order in which the Court gives that ruling is to determine the amount of the costs recoverable from the party who is ordered to pay costs, and as Article 170 of the Rules of Procedure does not contain, in respect of taxation of costs, a provision comparable to that provided for in Article 133 of that regulation concerning the decision which closes the proceedings, a ruling on costs related to the proceedings for taxation of costs cannot be given separately. The reason for that is that the Court, when determining the recoverable costs, takes account of all the circumstances of the case up until the time that the order for taxation of costs is made (see order of 13 February 2008, Verizon Business Global v Commission, T‑310/00 DEP, not published, EU:T:2008:32, paragraph 55 and the case-law cited, and order of 28 January 2014, Marcuccio v Commission, T‑366/10 P-DEP, not published, EU:T:2014:63, paragraph 37).
44 Therefore, the applicant’s claim that ESMA should be ordered to pay the costs incurred in the present proceedings for taxation of costs must be rejected as inadmissible.
45 However, as recalled in paragraph 43 above, in determining recoverable costs, the Court must, in principle, take into account all the circumstances of the case up to the adoption of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings.
46 In the present case, both parties are claiming reimbursement of their costs relating to the present proceedings for taxation of costs.
47 While it is true that the amount, totalling EUR 15 121.13, of the costs pertaining to Case F‑32/14, claimed by ESMA, far exceeds the amount ultimately determined by the Court, in the light of the applicable criteria (see paragraph 40 above), it must also be noted that ESMA was forced, in so far as the applicant had agreed only to reimburse the sum of EUR 7 500, to apply for taxation of costs.
48 Therefore, the costs in their entirety recoverable by ESMA from the applicant can be assessed on an equitable basis, including those relating to the present proceedings, and their amount can be set at EUR 8 407, which includes the amount of EUR 7 500 already paid by the applicant (see paragraph 13 above).
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
The total amount of the costs to be reimbursed by DO to the European Securities and Markets Agency (ESMA) in Case F‑32/14 is set at EUR 8 407.
Luxembourg, 24 November 2017.
E. Coulon | | S. Frimodt Nielsen |