ORDER OF THE CIVIL SERVICE TRIBUNAL

(First Chamber)

20 January 2009

Case F-77/07 DEP

Kay Labate

v

Commission of the European Communities

(Procedure – Taxation of costs)

Applications: by which Mrs Labate, first, sought reimbursement from the Commission of the fees and costs relating to order of 1 February 2008 in Case F‑77/07 Labate v Commission [2008] ECR-SC I-A-1-0000 and II-A-1-0000, totalling EUR 72 361.03, after a voluntary 30% reduction of the initial sum, second, offered to reduce the amount to EUR 45 000, and lastly, applied for taxation of costs.

Held: The amount of the costs recoverable by Mrs Labate in Case F‑77/07 is fixed at EUR 21 568.90.

Summary

Procedure – Costs – Taxation – Elements to be taken into consideration

(Rules of Procedure of the Court of First Instance, Art 91(b)); Rules of Procedure of the Civil Service Tribunal, Art. 122)

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, it 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.

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. As regards the scale of the work, the Court must take account of the total number of hours of work capable of being judged objectively necessary for the purpose of those proceedings.

(see paras 24, 25, 28)

See:

T-290/04 DEP Kaysersberg v Commission [1998] ECR II‑4105, para. 20; order of 9 September 2002 in T-182/00 DEP Pannella v Parliament, not published in the ECR, para. 29; T-171/00 DEP Spruyt v Commission [2002] ECR-SC I‑A‑225 and II‑1127, paras 25, 26 and 29; T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP De Nicola v EIB [2004] ECR-SC I‑A‑219 and II‑973, para. 32

ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(First Chamber)

20 January 2009 ( )

(Procedure – Taxation of costs)

In Case F‑77/07 DEP,

Kay Labate, widow of Mr Mario Labate, a former official of the Commission of the European Communities, residing in Tarquinia (Italy), represented by I. Forrester QC,

applicant,

v

Commission of the European Communities, represented by D. Martin and K. Herrmann, acting as Agents,

defendant,

THE TRIBUNAL (First Chamber),

composed of S. Gervasoni (Rapporteur), President, H. Kreppel and H. Tagaras, Judges,

Registrar: W. Hakenberg,

makes the following

Order

1 By application received at the Registry of the Civil Service Tribunal on 31 July 2007 by fax (the original being lodged on 1 August 2007), Mrs Labate sought principally, first, annulment of the decisions of 18 October 2004 and 6 October 2006 by which the Commission of the European Communities rejected the request for recognition of the occupational origin of her husband’s lung cancer, which caused his death, and secondly, compensation for non-material damage.

Facts and procedure

2 By order of 1 February 2008 in Case F-77/07 Labate v Commission [2008] ECR‑SC I-A-0000 and II-0000, the Tribunal held that there was no need to adjudicate on the applicant’s claims for annulment of the decisions of 18 October 2004 and 6 October 2006 following the withdrawal of those decisions during the proceedings and with no other decision with the same subject-matter being adopted. In that order, the Tribunal also rejected the claims for compensation and ordered the Commission to pay the costs.

3 In paragraph 31 of the order in Labate v Commission, the Tribunal stated that ‘[i]n the assessment of whether the costs for which the applicant seeks reimbursement are reasonable, the Commission will have to take duly into account the nature of the proceedings, their importance for the applicant and for the administration and the unprecedented nature of the question submitted to the Tribunal, which warranted an unusual volume of work and investment on the part of the applicant’s lawyer for this type of case’.

4 By letter of 11 April 2008, the applicant requested from the Commission reimbursement of fees and costs relating to Case F‑77/07 amounting to a total of EUR 72 361.03, after a voluntary 30% reduction of the initial sum.

5 By letter of 23 April 2008, the Commission informed the applicant that it considered the amount of the fees claimed to be excessive and that it was only prepared to pay EUR 21 500 in settlement of the statement of costs and fees submitted.

6 By letter of 17 June 2008, the applicant offered to reduce the amount of the fees and costs due to EUR 45 000.

7 By letter of 17 July 2008, the Commission confirmed its proposal of 23 April 2008.

8 By a document received at the Registry of the Tribunal on 13 August 2008, the applicant applied for taxation of costs.

9 By a document received at the Registry of the Tribunal on 24 September 2008 by fax (the original being lodged on 25 September 2008), the Commission submitted its observations on that application.

Forms of order sought

10 The applicant claims that the Tribunal should order the Commission to pay her costs in such amount as the Tribunal shall determine reasonable.

11 The Commission contends the Tribunal should:

– dismiss the applicant’s application;

– fix the recoverable costs at a maximum sum of EUR 21 500.

Law

Arguments of the parties

12 The applicant claims that the statement of the costs and fees submitted to the Commission was fully justified in the light of the special characteristics of the case. First, the subject-matter of the dispute, the annulment of a decision refusing to recognise lung cancer which developed following a situation of passive smoking in the Commission’s services as an occupational disease, raises a point of principle which has not until now been settled by the Community judicature.

13 Secondly, the dispute raises specific legal problems, inter alia as regards the standard of proof required for recognition of the occupational nature of a disease. In addition, specific procedural problems arose with the entry into force of the Rules of Procedure of the Civil Service Tribunal.

14 The legal difficulties of the case, referred to above, the human issues at stake and the length of the administrative procedure and court proceedings, which extended over a period of 5 years, required the joint efforts of a team of 10 lawyers.

15 The Commission submits that the sum of EUR 45 000 claimed is unreasonable for a staff case in which only one written pleading was lodged even assuming that the case, having regard to its specific features, required an unusual volume of work. The amount of fees claimed is 10 times the amount that a lawyer normally receives for producing a single written pleading.

16 Furthermore, the Commission disputes the usefulness of the work carried out by the applicant’s counsel on the concept of occupational disease in various Member States of the Community, given that the proceedings turned on the concept of occupational disease within the meaning of the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’), a concept which has already been considered in Community case-law.

17 In addition, the Tribunal rejected as manifestly unfounded the claims for compensation submitted by the applicant. Consequently, the Commission should only have to bear the costs relating to the claims in respect of annulment.

18 The Commission points out that it has consistently been held that, since there are no Community provisions laying down fee scales, the Community 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 as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings. In the Commission’s submission, to do so, the Community judicature is to have regard to the total number of hours worked and the number of written pleadings filed. In principle, only the remuneration of a single lawyer is to be taken into account, unless the services of several representatives proved necessary. In addition, costs and fees which are related to the administrative or pre-litigation procedure should not be treated as ‘recoverable costs’.

19 In the present case, the Commission contends that the applicant has furnished no justification as to why 10 lawyers actually worked on the case, or why the hours of work invoiced were all necessary to achieve a successful outcome. By way of comparison, the Court of First Instance has accepted a much lower figure of hours of work to be necessary in cases concerning more complex areas of Community law in which several sets of written pleadings had been lodged and a hearing had been held.

20 In addition, the hourly rate of EUR 675 claimed by the applicant is excessive in comparison with the hourly rate normally applied by the Court of First Instance, which in principle does not exceed EUR 250.

21 Given, first, the number of hours of work directly necessary in the case, estimated by the Commission at 100 hours, and, secondly, the different hourly rates to be applied according to the experience of the various lawyers involved, the defendant submits that recoverable costs represent a maximum total of EUR 14 000. Consequently, the sum of EUR 21 500 proposed by the Commission in its letter of 23 April 2008 is higher than the sum actually due, as determinable on the basis of the criteria laid down by the case-law of the Court of First Instance.

Findings of the Tribunal

22 First, under Article 91(b) of the Rules of Procedure of the Court of First Instance, applicable mutatis mutandis in the present case pursuant to the provisions of Article 122 of the Tribunal’s 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. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Tribunal and, second, to those which are necessary for that purpose (see order of the Court in Case 75/69 Hake v Commission [1970] ECR 901, paragraphs 1 and 2; orders of the Court of First Instance in Case T‑38/95 DEP Groupe Origny v Commission [2002] ECR II-217, paragraph 28, and Case T-171/00 DEP Spruyt v Commission [2002] ECR-SC I-A-225 and II-1127, paragraph 22).

23 Second, although the applicant does not expressly so request, her application must be interpreted, having regard to the terms used in particular in the body of the application, as asking that the Commission be ordered to reimburse the sum of EUR 45 000 in respect of fees and costs.

24 Third, as regards the costs relating to Case F-77/07, as is clear from settled case-law, 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, for example, Spruyt v Commission, paragraph 25).

25 Fourth, 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, for example, orders of the Court of First Instance of 9 September 2002 in Case T‑182/00 DEP Pannella v Parliament, not published in the ECR, paragraph 29; Spruyt v Commission, paragraph 26; and Joined Cases T-7/98 DEP, T-208/98 DEP and T-109/99 DEP De Nicola v EIB [2004] ECR-SC I-A-219 and II-973, paragraph 32).

26 It is according to those criteria that the amount of the recoverable costs is to be assessed in this case.

27 As regards the difficulties and significance of the case from the point of view of Community law, the claim gave rise to a number of rather complex points of law. Before the Commission withdrew its decision of 6 October 2006, the proceedings went to the previously unconsidered issue of whether an official with lung cancer who had been exposed to passive smoking in the exercise of his duties could benefit from insurance cover against the risk of occupational disease, as provided under Article 73 of the Staff Regulations, and to the standard of proof necessary to establish the causal link between the performance of duties in the service of the Communities and the disease or aggravation of the disease of an official.

28 As regards the scale of the work entailed in the proceedings before the Tribunal, account must be taken of the total number of hours of work capable of being judged objectively necessary for the purpose of those proceedings (see orders of the Court of First Instance in Case T-290/94 DEP Kayserberg v Commission [1998] ECR II‑4105, paragraph 20, and Spruyt v Commission, paragraph 29).

29 In the present case, as documented in the case-file, the applicant submitted only one pleading during the written procedure, she was not called on to devote a great deal of time to studying the written arguments of the defendant, since the Commission did not lodge a defence, and no hearing took place. It is true that, having regard to its length and particularly well‑researched and well-reasoned nature, the application shows that the lawyer put in an unusual amount of work for this type of case. Furthermore, contrary to the contentions of the defendant, the arguments in the application relating to the state of the law on occupational disease in several Member States of the Community provided useful clarification for the Tribunal. None the less, not all those arguments were objectively indispensable for the purpose of the proceedings and they could have been confined to certain essential evidence which, with the judicious assistance of specialised lawyers in those Member States, could have required only a limited number of hours of work. Thus, in the circumstances of the case as referred to above, the Tribunal takes the view that the 523.70 hours of work claimed by the applicant is manifestly excessive and that it would be a fair assessment of the volume of the work objectively necessary for the purpose of the proceedings to set the total number of hours of work at 100.

30 As regards the applicant’s financial interest in the proceedings, it must be observed that the effect of the contested decision was to deprive the applicant’s husband of the benefit of insurance against the risk of occupational disease provided for under Article 73 of the Staff Regulations. The applicant’s financial interest was therefore significant.

31 It follows from the foregoing analysis that the nature and the interest of these proceedings warranted high fees. The statement of fees produced by the applicant shows that an average hourly fee of EUR 215 would appear to reflect reasonable remuneration for an experienced lawyer in a case of this type (see, by way of analogy, with regard to a similar hourly rate in a staff case, order of the Tribunal in Case F-100/05 DEP Chatziioannidou v Commission [2007] ECR-SC I-A-0000 and II-0000, paragraph 28).

32 As regards the procedural costs, the sum of EUR 68.90 claimed by the applicant and not challenged by the Commission must be accepted, since that sum does not appear to be excessive.

33 Thus, the amount of costs to be reimbursed in respect of fees and costs must be fixed at the overall sum of EUR 21 568.90.

On those grounds,

THE TRIBUNAL (First Chamber)

hereby orders:

The amount of the costs recoverable by Mrs Labate in Case F-77/07 is fixed at EUR 21 568.90.

Luxembourg, 20 January 2009.

W. Hakenberg S. Gervasoni

Registrar President