ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)
29 August 2016 (*)
(Civil service — Procedure — Taxation of costs)
In Joined Cases F‑106/13 DEP and F‑25/14 DEP,
APPLICATION for taxation of costs,
DD, member of the temporary staff of the European Union Agency for Fundamental Rights, residing in Vienna (Austria), represented by L. Levi and M. Vandenbussche, lawyers,
applicant in the cases in the main proceedings,
v
European Union Agency for Fundamental Rights (FRA), represented by M. O’Flaherty, acting as Agent, and by B. Wägenbaur, lawyer,
defendant in the cases in the main proceedings,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber),
composed of K. Bradley, President, J. Sant’Anna and A. Kornezov (Rapporteur), Judges,
Registrar: W. Hakenberg,
makes the following
Order
1 By document received at the Registry of the Civil Service Tribunal on 13 May 2016, DD submitted the present application for taxation of costs to the Tribunal pursuant to Article 106 of the Rules of Procedure, following the judgment of the Tribunal of 8 October 2015 in DD v FRA (F‑106/13 and F‑25/14, EU:F:2015:118, on appeal before the General Court of the European Union, Case T‑742/15 P) (‘the judgment in the main proceedings’).
Legal context
2 Article 105 of the Rules of Procedure, entitled ‘Recoverable costs’, provides:
‘Without prejudice to the provisions of Articles 108 and 109 [of the Rules of Procedure], the following shall be regarded as recoverable costs:
...
(c) expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of the agent, adviser or lawyer.’
3 Article 106(1) of the Rules of Procedure provides that, if there is a dispute concerning the costs to be recovered, the Tribunal, on application by the party concerned and after hearing the opposite party, is to give its decision by way of reasoned order, from which no appeal may lie.
Factual background to the dispute
4 By application received at the Registry of the Tribunal on 25 October 2013 and registered as Case F‑106/13 (‘Case F‑106/13’), the applicant requested, in the first place, annulment of the decision of 20 February 2013 of the Director of the European Union Agency for Fundamental Rights (FRA) imposing a reprimand on him, in the second place, annulment of the decision rejecting his complaint against that decision and, in the third place, an order for the FRA to pay him the sum of EUR 15 000 by way of compensation for the non-material damage which he claimed to have suffered.
5 By application received at the Registry of the Tribunal on 24 March 2014 and registered as Case F‑25/14 (‘Case F‑25/14’), the applicant requested, in the first place, annulment of the decision of 13 June 2013 of the Director of the FRA terminating his temporary staff contract of indefinite duration, in the second place, annulment of the decision rejecting his complaint against that decision, in the third place, an order for the FRA to compensate him for the material damage which he claimed to have suffered and, in the fourth place, an order for the FRA to pay him the sum of EUR 50 000 by way of compensation for the non-material damage which he claimed to have suffered.
6 By the judgment in the main proceedings, delivered in Joined Cases F‑106/13 and F‑25/14 (‘Cases F‑106/13 and F‑25/14’ or ‘the cases in the main proceedings’), the Tribunal annulled the decision of 20 February 2013 by which the Director of the FRA imposed a reprimand on the applicant and the decision of 13 June 2013 by which that director terminated the applicant’s temporary staff contract of indefinite duration, dismissed the actions as to the remainder and decided that the FRA should pay the costs in their entirety, as is apparent from points 1 to 4 of the operative part of the judgment in question.
7 Following the delivery of the judgment in the main proceedings, by letter of 20 October 2015, both of the applicant’s lawyers invited the FRA to proceed with the payment of the costs that the applicant had incurred in the context of Cases F‑106/13 and F‑25/14, namely the sum of EUR 32 221.71, including the sum of EUR 31 532.15 for their remuneration and EUR 689.56 for the costs of the applicant’s travel to and stay in Luxembourg (Luxembourg) in order to attend the hearing before the Tribunal in person. In an annex to that letter, the applicant’s lawyers described the services provided, indicating a total amount corresponding to all of those services.
8 By letter of 22 December 2015, the FRA’s lawyer responded to the applicant’s lawyers stating that he would ‘revert [to them] in due course’ regarding payment of the costs in the context of complying with the judgment in the main proceedings but that in the meantime he wanted to obtain ‘indications as to how much time [the applicant’s lawyers had] spent on each of the services ... and the rate of fees per hour’.
9 By letter in reply of 4 January 2016, the applicant’s lawyers stated, without however communicating a detailed statement of the services provided, that the total number of hours provided in the context of dealing with Cases F‑106/13 and F‑25/14 came to 142 hours and 10 minutes, invoiced at the respective rate, depending on the year when the services were rendered, of EUR 150, EUR 165 and EUR 180 per hour for the one lawyer who had provided 120 hours of work, and at the single rate of EUR 220 per hour for the other, who had spent the remaining 22 hours and 10 minutes dealing with the case file.
10 By a further letter sent to the FRA’s lawyer, dated 19 February 2016, the applicant’s lawyers observed that their letter of 4 January 2016 had remained unanswered and that, should payment not be made by the end of February 2016, the applicant would be ‘left with no other option’ than to bring an application for taxation of costs before the Tribunal on the basis of Article 106 of the Rules of Procedure.
11 By letter of 29 February 2016, the FRA’s lawyer replied that the information contained in the letter of 4 January 2016 ‘did not indicate how many hours [had been] spent on each service’ and that an application for taxation of costs would be ‘clearly premature since[, firstly,] there [was] no “dispute concerning the costs to be recovered”, but [a] legitimate request from the [FRA] to be provided with the [information relating to the number of hours spent on each service] and[, secondly,] the breakdown [which had been] requested from [them] [would be] something the [Tribunal] would require ... anyway, as the consistent case-law confirms’.
12 By letter of 14 March 2016, the applicant’s lawyers sent the FRA’s lawyer a description of the services provided as well as an indication of the number of hours corresponding to each category of those services and requested payment by 15 April 2016 at the latest, failing which an application for taxation of costs would be brought before the Tribunal.
13 By email of 15 April 2016, the FRA’s lawyer replied to the applicant’s lawyers that since he had not been involved in the proceedings at first instance, he ‘[needed] some more time to assess [their request for payment of the fees and expenses] and [would] revert [to them] on [22 April 2016] at the latest’.
14 By email of 5 May 2016, one of the applicant’s lawyers informed the FRA’s lawyer that, as they had not received a response from him by 22 April 2016, they had received instructions from the applicant to lodge an application for taxation of costs.
15 By email of 9 May 2016, the FRA’s lawyer replied that, pursuant to Article 106 of the Rules of Procedure, such an application required a ‘dispute’ between the parties, ‘which [was] not the same as one party being impatient’. In addition, he indicated that the applicant’s lawyers had ‘taken ... some time’ to provide him with the detailed information that he had requested and reminded them that he needed more time to assess the request for payment of the costs since he had not participated in the proceedings at first instance.
16 By email in reply of 11 May 2016, the applicant’s lawyers argued that, pursuant to Article 106 of the Rules of Procedure, a dispute can also arise from the failure of a party to take action within a reasonable time. They also observed, in that email, that the FRA’s lawyer had not indicated any date by which a response would be sent to them with regard to the request for reimbursement of the costs, even though all the necessary information had been sent to him. In that regard, the applicant’s lawyers stated that ‘a period of two months to make such an assessment [was] more than sufficient, even for a counsel not involved at first instance’.
Forms of order sought and procedure
17 The applicant claims that the Tribunal should:
– declare that the action is admissible and well founded;
– order the FRA to reimburse him for the total amount of the costs, amounting to EUR 32 221.71;
– order the FRA to reimburse him for the costs incurred in the present proceedings;
– order the FRA to pay default interest from the date of the order at the reference rate of the European Central Bank (ECB), increased by two points.
18 The FRA contends that the Tribunal should:
– dismiss the applicant’s application for taxation of costs as inadmissible;
– in the alternative, order that the total amount of all fees and costs, including VAT where applicable, be taxed at EUR 16 079.80.
Law
Arguments of the parties
19 Regarding the taxation of the costs incurred in the cases in the main proceedings, the applicant submits, first, that his application is admissible in that he was legitimately entitled to consider that the FRA’s failure to take action was tantamount to a refusal to grant his request for reimbursement of the recoverable costs. In that regard, the applicant emphasises that he has provided the FRA with all the necessary information and has given it sufficient time to assess his request, as seven months have passed between the delivery of the judgment in the main proceedings and the submission of that application.
20 Next, the applicant argues that the amount of work done by his lawyers, corresponding to two separate actions in Cases F‑106/13 and F‑25/14, which involved two exchanges of pleadings in each of the actions and a joint hearing and which presented a certain degree of legal complexity, is perfectly reasonable. Thus, the recoverable costs amount, in the present case, to EUR 31 532.15, corresponding to 142 hours and 10 minutes of work provided by his lawyers, including 75 hours and 25 minutes for drafting the two applications in each of the cases in the main proceedings, 25 hours and 10 minutes for drafting the two replies in those cases, 7 hours and 5 minutes for drawing up observations regarding the further evidence offered by the FRA on 2 October 2014 in Case F‑25/14 (‘the further evidence offered’) and 13 hours for preparing the hearing, those hours being invoiced at a rate ranging from EUR 150 to EUR 220 per hour.
21 As regards the importance of the cases in the main proceedings, the applicant states that they involved his reputation and the termination of his contract of indefinite duration, the latter aspect representing a significant economic interest for him.
22 Furthermore, according to the applicant, the cases in the main proceedings were important from the point of view of EU law since they raised, in particular, the question of the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p. 22) and of the fundamental right to be heard, as enshrined in Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’), in the context of proceedings relating to the European civil service.
23 Lastly, the applicant requests that default interest be paid from the date of notification of the order on taxation of costs until the date of actual payment and that the FRA be ordered to pay the costs of the present taxation of costs proceedings.
24 The FRA contests the admissibility of the present application on the ground that there is no ‘dispute’ between the parties concerning the costs to be recovered within the meaning of Article 106 of the Rules of Procedure. The FRA, it is contended, neither refused to make payment of the costs incurred by the applicant nor delayed in complying with the judgment in the main proceedings regarding those costs, since the absence of a detailed statement of the services provided by the applicant’s lawyers prevented it from assessing the necessity of the sums claimed.
25 As regards the substance, the FRA contends, first, that the services provided by the applicant’s lawyers in the pre-litigation procedure do not constitute recoverable costs, as it has not been established that they were necessary in the proceedings before the Tribunal.
26 In addition, according to the FRA, the number of hours of work invoiced by the applicant’s lawyers for certain services should be reduced. Thus, the drafting of the two applications, it is contended, required only 22 hours of work for Case F‑106/13 and 18 hours of work for Case F‑25/14. As for the drafting of the reply in the latter case, that required only 14 hours of work. Likewise, 3 hours and 50 minutes of work was sufficient for the drawing up of observations regarding the further evidence offered. As for the preparation of the hearing, that required only 7 hours of work.
27 Therefore, as Cases F‑106/13 and F‑25/14 were not particularly complex, an amount of EUR 18 000 would be appropriate for the applicant’s lawyers’ fees.
28 Furthermore, the FRA contests the application, on the invoices submitted by the applicant’s lawyers, of a global fixed sum of 10% of their fees for administrative costs. It states — citing, in that regard, paragraphs 80 to 82 of the order of 31 March 2011 in Tetra Laval v Commission (T‑5/02 DEP and T‑80/02 DEP, EU:T:2011:129) and paragraph 43 of the order of 20 November 2012 in Al Shanfari v Council and Commission (T‑121/09 DEP, EU:T:2012:607) — that, according to case-law, those are not necessary expenses.
29 Next, although the train and taxi costs, amounting to EUR 79.80, incurred in transporting the applicant’s lawyers to Luxembourg in order that they might attend the hearing were necessary expenses, the basis for the costs of the applicant’s travel to and stay in Luxembourg is not clearly identifiable.
30 Lastly, the FRA argues that, as the present application for taxation of costs is erroneous and vexatious for it, an amount of EUR 2 000 should be deducted from the costs payable by the FRA. Accordingly, an amount of EUR 16 079.80, including VAT, should be granted to the applicant as recoverable costs.
Findings of the Tribunal
Admissibility of the application for taxation of costs
31 It should be borne in mind that, pursuant to Article 106(1) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Tribunal, on application by the party concerned and after hearing the opposite party, is to give its decision by way of reasoned order, from which no appeal may lie.
32 It cannot be that a dispute for the purposes of that provision can be deemed to arise only when the party who has been requested to reimburse the costs advanced by the successful party provides an explicit, comprehensive refusal. If that were so, it would be sufficient for a party to proceedings who has been ordered to pay the costs incurred by the other party to refrain from engaging in any reaction or use delaying tactics in order to make it impossible to lodge an application for taxation of costs pursuant to the abovementioned Article 106. That would render nugatory the procedure provided for in Article 106 of the Rules of Procedure, which serves to achieve a definitive ruling on the costs of the proceedings (see, to that effect, orders of 11 December 2014 in Longinidis v Cedefop, T‑283/08 P-DEP, EU:T:2014:1083, paragraph 13, and 25 March 2014 in Marcuccio v Commission, T‑126/11 P-DEP, EU:T:2014:171, paragraph 13).
33 It is true that, in the present case, the applicant’s lawyers refrained for a certain period of time from sending the FRA’s lawyer a detailed statement setting out each service provided in the context of dealing with the cases in the main proceedings, despite that lawyer’s requests. However, the fact remains that, after receiving more information in that regard by letter of 14 March 2016, the FRA’s lawyer did not, for two months and therefore until the application was lodged with the Tribunal by the applicant, either make payment of the costs claimed or seek further details concerning the invoicing of the services provided.
34 Such a prolonged failure to act cannot entail the inadmissibility of the present application without rendering the procedure provided for in Article 106 of the Rules of Procedure nugatory within the meaning of the case-law cited in paragraph 32 above. In those circumstances, the present application for taxation of costs must be held to be admissible.
Merits of the application for taxation of costs
– The recoverability of the costs
35 In the first place, under Article 105(c) 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 the agent, adviser or lawyer’, are to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Tribunal and, secondly, to those which were necessary for that purpose (order of 26 April 2010 in Schönberger v Parliament, F‑7/08 DEP, EU:F:2010:32, paragraph 23).
36 In the second place, it is settled case-law that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the extent to which those fees may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, those courts do not have to take into consideration a national scale fixing lawyers’ fees or any agreement concluded in that respect between the party concerned and its agents or counsel (orders of 10 November 2009 in X v Parliament, F‑14/08 DEP, EU:F:2009:149, paragraph 22; 26 April 2010 in Schönberger v Parliament, F‑7/08 DEP, EU:F:2010:32, paragraph 24; and 27 September 2011 in De Nicola v EIB, F‑55/08 DEP, EU:F:2011:155, paragraph 41).
37 In the third place, it is also settled case-law that, in the absence of any provisions of EU law relating to scales of fees, the court must assess freely the facts of the case, taking into account the subject matter and the nature of the dispute, its importance from the aspect of Union law and also the difficulty of the case, the amount of work which the contentious proceedings may have required on the part of the agents or counsel involved and the economic interests which the dispute represented for the parties (order of 27 September 2011 in De Nicola v EIB, F‑55/08 DEP, EU:F:2011:155, paragraph 41).
38 In the fourth place, in fixing the recoverable costs, the Tribunal is to take account of all the circumstances of the case up to the making of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (order of 23 March 2012 in Kerstens v Commission, T‑498/09 P-DEP, EU:T:2012:147, paragraph 15).
39 In the present case, it should be noted, first, that a part of the fees claimed by the applicant’s lawyers, corresponding to 9 hours and 25 minutes of work, relates to the pre-litigation procedure in each of the cases in the main proceedings. However, as is apparent from the case file, the two complaints had been drafted by the applicant himself and not by his lawyers. In any event, in proceedings concerning the taxation of costs, save in exceptional circumstances, fees owed for services provided by a lawyer at the stage of the pre-litigation procedure do not constitute recoverable costs (see, in particular, judgment of 28 October 2010 in Cerafogli v ECB, F‑23/09, EU:F:2010:138, paragraph 63). It follows that the work allegedly carried out by the applicant’s lawyers in that regard cannot be recognised as costs to be regarded as recoverable. Therefore, of the 142 hours and 10 minutes of work in respect of which payment is claimed, only 132 hours and 45 minutes correspond to costs incurred for the purpose of the procedure before the Tribunal in the cases in the main proceedings.
40 As regards, secondly, the costs of the applicant’s travel to and stay in Luxembourg in order to attend the hearing before the Tribunal in person, it should be borne in mind that, according to settled case-law, the travel and subsistence expenses incurred by persons other than the lawyer of the applicant are recoverable only if the presence of those persons was necessary for the purpose of the proceedings (see, by analogy, order of 8 July 1998 in Eugénio Branco v Commission, T‑85/94 (92) and T‑85/94 (122) (92), EU:T:1998:156, paragraph 24 and the case-law cited).
41 However, in the present case, the presence of the applicant at the joint hearing on 9 March 2015 was not necessary, as this was not expressly requested by the Tribunal. Consequently, the costs of the applicant’s travel to and stay in Luxembourg, which amount to EUR 689.56, must be excluded from the costs to be regarded as recoverable.
– The amount of the recoverable costs
42 As regards, in the first place, the nature and subject matter of the cases in the main proceedings and the difficulty of those cases, it must be noted that those cases presented a certain degree of complexity, both in terms of their nature and subject matter, in that the applicant was requesting the annulment of two decisions of the Director of the FRA: the decision to impose a reprimand on him, and the decision to terminate his contract of indefinite duration on the ground that he had made unfounded accusations of racial discrimination against the Head of the Freedoms and Justice Department of the FRA.
43 In the second place, viewed from the perspective of EU law, the cases in the main proceedings were of some importance in so far as they raised the question of the application of Article 9 of Directive 2000/43 and of Article 41(2)(a) of the Charter in proceedings relating to the European civil service.
44 The cases in the main proceedings also represented a significant economic interest for the applicant, given that one of the contested decisions was to terminate his contract of indefinite duration.
45 In the third place, with regard to the amount of work supplied, it should be borne in mind that the Courts of the European Union are not bound by the invoice submitted by the party wishing to recover costs, but must take account only of the total number of hours of work capable of being judged objectively necessary for the purpose of the proceedings (orders of 26 April 2010 in Schönberger v Parliament, F‑7/08 DEP, EU:F:2010:32, paragraph 29, and 25 October 2012 in Missir Mamachi di Lusignano v Commission, F‑50/09 DEP, EU:F:2012:147, paragraph 21).
46 In the present case, the FRA contests only the total number of hours of work which were devoted by the applicant’s lawyers to certain services provided, namely the drafting of the two applications, the reply in Case F‑25/14 and the observations regarding the further evidence offered, as well as the preparation of the hearing.
47 In order to assess whether the total number of hours of work invoiced by the applicant’s lawyers is capable of being judged objectively necessary for the purpose of the proceedings before the Tribunal, account should be taken of the fact that it included two exchanges of pleadings for each of the cases in the main proceedings and a joint hearing.
48 With regard, first, to the amount of work required in the drafting of the two applications in question, while it is true that they contained extensive statements of reasons and raised six and five pleas respectively, the fact remains that, at the time of analysing the case file, the applicant’s lawyers already had at their disposal the two complaints made by the applicant himself and the FRA’s two responses to those complaints, which was likely to facilitate their work and to reduce the time required to deal with the proceedings. Furthermore, while the cases in the main proceedings each raised distinct legal issues, they were nevertheless based on a common factual background. The Tribunal finds, therefore, that the figure of 75 hours and 25 minutes of work invoiced by the applicant’s lawyers for the drafting of the two applications is excessive. It must instead be held that 25 hours of work per application — 50 hours in total — was sufficient for lawyers with experience in civil service matters, such as the applicant’s lawyers.
49 With regard, secondly, to the drafting of the two replies, the Tribunal notes that they each consisted of 15 pages and related to several substantive questions. Accordingly, the figure of 25 hours and 10 minutes of work invoiced by the applicant’s lawyers for the drafting of the two replies seems perfectly reasonable.
50 In the third place, the figure of 7 hours and 5 minutes of work invoiced for the drafting of observations in response to the further evidence offered does not seem excessive in so far as the work carried out involved an analysis both of the admissibility and of the merits of the further evidence offered.
51 In the fourth and last place, as regards the preparation of the hearing, it should be observed that it was common to the cases in the main proceedings, that it consisted only of structuring the pre-existing arguments, and that the applicant’s lawyers already had a thorough knowledge of the cases in the main proceedings. In those circumstances, it must be held that 10 hours of work, rather than the 13 hours of work invoiced by the applicant’s lawyers, was largely sufficient for that purpose.
52 Therefore, having regard to the foregoing, on a fair assessment of the work objectively necessary for the purpose of the main proceedings the number of hours of work by the applicant’s lawyers is fixed as follows: 50 hours for the drafting of the two applications in the cases in the main proceedings; 25 hours and 10 minutes for the drafting of the two replies; 7 hours and 5 minutes for the drafting of the observations regarding the further evidence offered; and 10 hours with regard to the preparation for the hearing, that is, 92 hours and 15 minutes, to which it is necessary to add the hours of work corresponding to other services provided by the applicant’s lawyers and not contested by the FRA, that is, a total figure of 104 hours and 20 minutes of work.
53 With regard to the hourly rates of EUR 150, EUR 165 and EUR 180 invoiced for the services provided by one of the applicant’s lawyers and the hourly rate of EUR 220 invoiced for the services provided by the applicant’s other lawyer, those rates, which moreover are not contested by the FRA, do not seem unreasonable having regard to the average hourly rate charged in other cases of the same type as the cases in the main proceedings.
54 In those circumstances and taking into account, on the one hand, an hourly rate of EUR 180 for the work carried out by one of the applicant’s lawyers and estimated at 82 hours and 20 minutes of work and, on the other hand, an hourly rate of EUR 220 for the work carried out by the applicant’s other lawyer and estimated at 22 hours of work, the lawyers’ fees which may be regarded as necessary in the context of the main proceedings must be evaluated at the sum of EUR 19 660.
55 As regards the administrative costs invoiced at a fixed-price rate of 10% of the lawyers’ fees, it should be emphasised that, contrary to the FRA’s assertions, it cannot be inferred from the case-law cited by the FRA and referred to in paragraph 28 above that such costs are, in principle, excluded from the recoverable costs. On the contrary, the necessity of such costs must be assessed, on a case-by-case basis, according to their nature.
56 In the present case, the Tribunal notes that the applicant does not produce any evidence to specify the nature of those administrative costs, but merely claims, in the invoices produced by his lawyers, a global fixed sum of 10% of the fees invoiced. The Tribunal considers, in those circumstances, that a global fixed sum of 5% is more appropriate (see, in particular, order of 3 July 2014 in Bogusz v Frontex, F‑5/12 DEP, EU:F:2014:179, paragraph 44 and the case-law cited). It is therefore necessary to fix the amount of the costs that the FRA must reimburse to the applicant for his lawyers’ fees, including administrative costs, at EUR 20 643.
57 In addition, the applicant correctly argues that, with regard to recoverable expenses, he is entitled to payment of the value added tax (‘VAT’) that he must pay on the fees invoiced by his lawyers. As the applicant is not subject to that tax, he cannot recover the VAT in respect of the goods and services which he purchases (orders of 8 July 2004 in De Nicola v EIB, T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP, EU:T:2004:217, paragraph 37, and 25 October 2012 in Missir Mamachi di Lusignano v Commission, F‑50/09 DEP, EU:F:2012:147, paragraph 31). Thus, the VAT paid by the applicant on the lawyers’ fees which have been judged to be necessary within the meaning of Article 105(c) of the Rules of Procedure also represents expenses necessarily incurred by him for the purpose of the proceedings.
58 Accordingly, the lawyers’ fees necessarily incurred by the applicant in the cases in the main proceedings amount to EUR 20 643, to be increased by the VAT due on that sum.
59 Furthermore, as the train and taxi costs, amounting to EUR 79.80, incurred by the applicant in transporting his lawyers to Luxembourg for the hearing have not been contested, they are to be maintained.
60 The Tribunal therefore considers it a fair assessment of the recoverable costs to fix the amount thereof at (i) the sum of EUR 20 643 for the applicant’s lawyers’ fees, to be increased by the VAT due on that sum, and (ii) the sum of EUR 79.80 for the train and taxi costs mentioned in paragraph 59 above.
Claim for default interest
61 It should be borne in mind, in the first place, that, pursuant to Article 106 of the Rules of Procedure, the Tribunal alone has the power to declare that a party must pay default interest on an order as to costs delivered by the Tribunal, and to fix the applicable rate (order of 24 October 2014 in Marcuccio v Commission, F‑14/10 DEP, EU:F:2014:240, paragraph 32).
62 In the present case, the applicant requests that the Tribunal order the FRA to pay him default interest on the amount of costs to be reimbursed, from the date of notification of the present order. Such a request for default interest is admissible and well founded.
63 Consequently, it must be held that the amount of recoverable costs is to bear default interest, from the date of service of this order, at a rate calculated on the basis of the rate set by the ECB for main refinancing operations applicable during the period concerned, increased by two percentage points.
Costs incurred in connection with the taxation of costs proceedings
64 Article 106 of the Rules of Procedure on the procedure for disputing the costs does not provide, unlike Article 100 of those rules concerning judgments or orders closing proceedings, that a decision is to be made on the costs of the taxation of costs proceedings in the order on taxation of costs. Indeed, if the Tribunal, adjudicating in an action brought on the basis of Article 106 of the Rules of Procedure disputing the costs of main proceedings, were to rule on the costs being disputed and, separately, on the new costs incurred in the action disputing the costs, a subsequent action might, in some circumstances, be brought before it disputing the new costs (order of 26 April 2010 in Schönberger v Parliament, F‑7/08 DEP, EU:F:2010:32, paragraph 45).
65 However, as has been recalled in paragraph 38 above, it is for the Tribunal, when fixing the amount of the recoverable costs, to take account of all the circumstances of the case up to the making of the order on taxation of costs.
66 In the present case, it should be noted, on the one hand, that, despite the requests from the FRA’s lawyer, the applicant’s lawyers refrained for several months from sending a detailed statement of the services provided in the context of dealing with Cases F‑106/13 and F‑25/14. On the other hand, once such information was sent to him by email of 14 March 2016, the FRA’s lawyer did not, for two months and therefore until an application was lodged with the Tribunal, either seek further details or respond to the request for payment of the costs made by the applicant’s lawyers.
67 In those circumstances, it is a fair assessment of the costs recoverable in connection with the present taxation of costs proceedings to limit those costs to EUR 250.
68 It follows from all of the foregoing that the total amount of costs recoverable by the applicant from the FRA with regard to the cases in the main proceedings amounts to (i) the sum of EUR 20 643 as regards his lawyers’ fees, to be increased by the VAT due on that sum, and (ii) the sum of EUR 79.80 as regards the train and taxi costs incurred by the applicant in transporting his lawyers to Luxembourg for the hearing. Subsequently, those sums are to be increased by default interest from the date of service of the present order.
On those grounds,
THE CIVIL SERVICE TRIBUNAL
(Second Chamber)
hereby orders:
1. The total amount of costs to be reimbursed by the European Union Agency for Fundamental Rights to DD by way of recoverable costs in Cases F‑106/13 and F‑25/14 is fixed at (i) the sum of EUR 20 643 as regards the applicant’s lawyers’ fees, to be increased by the value added tax due on that sum, and (ii) the sum of EUR 79.80 as regards the train and taxi costs incurred by the applicant in transporting his lawyers to Luxembourg for the hearing.
2. The sums referred to in point 1 are to accrue default interest from the date of service of the present order until the date of actual payment, at a rate calculated on the basis of the rate set by the European Central Bank for main refinancing operations in force on the first day of the month of the deadline for payment, increased by two points.
Luxembourg, 29 August 2016.