ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Third Chamber)

17 March 2016

Case F‑76/11 DEP

Diana Grazyte

v

European Commission

(Civil service — Procedure — Taxation of costs — Access to a court — Solvency of the party ordered to pay the costs)

Application:      for taxation of costs, submitted by the European Commission following the judgment of 5 December 2012 in Grazyte v Commission (F‑76/11, EU:F:2012:173).

Held:      The total amount of the costs to be repaid by Ms Grazyte to the European Commission in respect of recoverable costs in Case F‑76/11 Grazyte v Commission is fixed at EUR 4 675.32. The amount referred to in paragraph 1 is to bear default interest from the date of service of the present order to the date of actual payment, at the rate fixed by the European Central Bank for its main refinancing operations in force on the first calendar day of the month when payment is due, increased by three-and-a-half percentage points. The remainder of the application is dismissed.

Summary

1.      Judicial proceedings — Costs — Taxation — Elements to be taken into consideration — Assistance by the same lawyer in the pre-litigation phase relevant for the dispute — Reduction of preparation time needed for the proceedings before the Tribunal — Scope

(Rules of Procedure of the Civil Service Tribunal (2007), Art. 91(b))

2.      Judicial proceedings — Costs — Recoverable costs — Fees of lawyers of the EU institutions or bodies — Hourly rate applicable for civil service cases

(Rules of Procedure of the Civil Service Tribunal, Art. 103(5))

3.      EU law — Principles — Right to effective judicial protection — Expenses incurred by an institution in proceedings before the Union courts — Order for the other party to reimburse recoverable costs — Taking account of the solvency of that party — Lawfulness

(Art. 6(1), first para., TEU; Charter of Fundamental Rights of the European Union, Art. 47)

4.      Judicial proceedings — Costs — Taxation — Recoverable costs — Elements to be taken into consideration — Fees payable by the parties to their own lawyers — Taking account of solvency of party ordered to pay the costs

(Rules of Procedure of the Civil Service Tribunal (2007), Arts 91(b), 95(1), second para., 97(2), first para., and (3), and 98(1))

1.      The Union judicature is not bound by the invoice submitted by the party wishing to recover costs. It must take account only of the total number of hours’ work that may appear objectively necessary for the purposes of the proceedings.

Moreover, 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 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 Civil Service Tribunal.

However, there is no absolute presumption in this connection that the work to be carried out by an institution’s lawyer would have been reduced, particularly where he was not involved in drawing up the response to a complaint.

The legality of a decision is assessed on the basis of the facts and the law as they stood at the time when it was adopted, so that the task of an institution’s lawyer is to defend the grounds and operative part set out in that decision, save in exceptional cases where, because the administration’s powers are circumscribed, it may substitute a different ground for that on which it had originally based the decision. In those circumstances, it must be considered that an institution’s lawyer is, as a general rule, required to rely on work previously carried out by the institution’s legal service both in the adoption of the contested decision and in the pre-litigation procedure.

(see paras 21-23, 25)

See:

Orders of 16 October 2014 in Marcuccio v Commission, F‑69/10 DEP, EU:F:2014:238, para. 21, and 25 November 2014 in Loukakis and Others v Parliament, F‑82/11 DEP, EU:F:2014:253, para. 32

2.      In civil service proceedings, a rate of EUR 250 an hour may, as a rule, be accepted as representing a reasonable remuneration for an institution’s lawyer.

(see para. 32)

See:

Orders of 25 June 2014 in Buschak v Eurofound, F‑47/08 DEP, EU:F:2014:175, para. 53, and 16 October 2014 in Marcuccio v Commission, F‑69/10 DEP, EU:F:2014:238, para. 28

3.      Pursuant to the first subparagraph of Article 6(1) TEU, the Charter of Fundamental Rights of the Europe Union and the Treaties have the same legal value. It follows that rules of lesser mandatory force than the Charter must be interpreted as far as possible in such a way that they are able to be applied in accordance with the Charter. Specifically, the Rules of Procedure of the Civil Service Tribunal must be interpreted in accordance with Article 47 of the Charter, which guarantees the right to an effective remedy before a court or tribunal.

In that regard, it is clear from the case-law of the European Court of Human Rights that the imposition of a considerable financial burden, even after the proceedings are concluded, may constitute a restriction on the right of access to a court, which is an element of the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights and now safeguarded in the EU legal order by Article 47 of the Charter. Specifically, the European Court of Human Rights has held that the amount of costs, assessed in the light of the particular circumstances of a given case, including the applicant’s solvency and the phase of the proceedings in which the restriction in question is imposed, is a factor in determining whether or not a person could take advantage of his right of access to a court.

That being so, the taking into account of the solvency of the party ordered to pay the costs in proceedings for the taxation of those costs is not a misuse of power or of competence.

(see paras 38, 40, 43)

See:

Judgments of 18 December 2014 in Abdida, C‑562/13, EU:C:2014:2453, para. 47, and 6 October 2015 in Orizzonte Salute, C‑61/14, EU:C:2015:655, para. 49

4.      In proceedings for the taxation of costs, where the Civil Service Tribunal is required to determine the amount of fees payable by the parties to their own lawyers which may be recovered from the party ordered to pay the costs, it is entitled to take account of that party’s solvency.

The right of access to a court would not be properly safeguarded if the prospect of a party having, or not having, to bear sizeable costs at the outcome of the proceedings were left solely to the discretion of his opponent. On the contrary, it is the court which must, where difficulties arise, be responsible for fixing the costs taking account of circumstances such as the party’s solvency.

Moreover, it is clear from the second subparagraph of Article 95(1), Article 97(3) and Article 98(1) of the Rules of Procedure of 25 July 2007 that legal aid could cover only the costs associated with the assistance and representation of the recipient. Legal aid granted in accordance with the first subparagraph of Article 97(2) of those Rules could therefore not cover the hypothetical question of the amount of costs which the applicants, if unsuccessful, would have to repay to the defendants by way of their lawyers’ fees.

(see paras 46, 50, 53)