ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL (Second Chamber)

21 October 2014 ( )

(Civil service — Procedure — Taxation of costs — Lawyer’s fees — Representation of an institution by a lawyer — Transport and accommodation expenses and daily allowances for the lawyer — Recoverable costs)

In Case F-107/11 DEP,

APPLICATION for taxation of costs,

Ioannis Ntouvas, former member of the contract staff at the European Centre for Disease Prevention and Control, residing in Agios Stefanos (Greece), represented by V. Kolias, lawyer,

applicant,

v

European Centre for Disease Prevention and Control (ECDC), represented by R. Trott, acting as Agent, assisted by D. Waelbroeck and A. Duron, lawyers,

defendant,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

Composed, at the time of deliberation, of M.I. Rofes i Pujol (Rapporteur), President, K. Bradley and J. Svenningsen, Judges,

Registrar: W. Hakenberg,

makes the following

Order

1 By document received by the Registry of the Tribunal on 2 August 2013, Mr Ntouvas submitted the present application to the Tribunal for taxation of the costs of the case which gave rise to the judgment in Ntouvas v ECDC, F-107/11, EU:F:2012:182, the subject of an appeal pending before the General Court of the European Union in Case T-94/13 P, pursuant to Article 92(1) of the Rules of Procedure then in force (‘the old Rules of Procedure’).

Legal context

2 Under Article 92 of the old Rules of Procedure, relating to disputes as to costs:

‘1. If there is a dispute concerning the amount and nature of the costs to be recovered, the Tribunal shall, on application by the party concerned and after hearing the opposite party, give its decision by way of reasoned order.

In accordance with Article 11(2) of Annex I to the Statute [of the Court of Justice of the European Union], no appeal may lie from that order.

…’

3 On 18 November 2008, the European Commission adopted Decision C(2008) 6215 on General implementing provisions adopting the Guide to missions for officials and other servants of the European Commission (‘the 2008 Guide to missions’). Point 9 of the 2008 Guide to missions, concerning missions combined with absence for personal reasons, provides as follows:

‘An ad hoc signature by the authorising officer is required if a mission is to be combined with absence for personal reasons of more than three calendar days as a result of leave, a weekend, non-working days or public holidays.’

Factual background to the dispute

4 By application lodged at the Registry of the Tribunal on 18 October 2011, the applicant brought an action seeking, essentially, the annulment of his appraisal report in respect of 2010.

5 On 11 December 2012, by the judgment in Ntouvas v ECDC, EU:F:2012:182, the Tribunal dismissed the action as unfounded and ordered the applicant to pay the costs, as is apparent from points 1 and 2 respectively of the operative part.

6 By a letter dated 24 January 2013 accompanied by supporting evidence, the Director of the European Centre for Disease Prevention and Control (ECDC) claimed from the applicant the costs incurred in Case F-107/11, Ntouvas v ECDC. Those costs amounted to a total of EUR 16 630.81 and comprised, first, the fees of its two lawyers, in the amount of EUR 15 000, and the travel, administrative and accommodation expenses of one of the two lawyers, in the total amount of EUR 394.14, and, secondly, the travel, accommodation and mission expenses of the agent of the ECDC who attended the hearing of 5 July 2012, in the amounts of EUR 790.27 (EUR 720.23 of which was for air fares), EUR 290 and EUR 156.40 respectively. The applicant was given until 15 March 2013 to reimburse the ECDC for the total amount requested.

7 The applicant responded by email of 10 February 2013. He asked to receive the original of the invoices, and particulars of the lawyer’s fees. He also requested additional information, since he had not been able to ascertain whether all the expenses claimed had indeed been necessary in order to conduct the ECDC’s defence.

8 By a letter of 11 February 2013, the Director of the ECDC informed the applicant that he could only be given photocopies of the supporting evidence for the expenses claimed, since the originals had to be retained by the persons concerned for accounting, audit and tax-payment purposes. So far as concerns the lawyer’s fees, the Director also stated that the ECDC did not have detailed invoices, since they had worked on the basis of a flat-rate fee.

9 The applicant replied on 12 February 2013 by an email in which he indicated that he was prepared to reimburse only the sum of EUR 517.35 in respect of the travel, accommodation, and mission expenses for the agent who had represented the ECDC. Since he was of the opinion that it had not been necessary for the ECDC to use external lawyers, since the ECDC had an agent of grade AD 10 to direct its legal service, the applicant refused to reimburse the fees of those lawyers, which, he submitted, should have been billed by the hour and not on the basis of a flat-rate sum.

10 By a letter of 1 March 2013, the Director of the ECDC sent the applicant debit note No 4440130005, drawn up on 26 February 2013 for EUR 16 630.81, and reminded him that it should be settled no later than 15 March 2013. The original of that note was sent to the applicant by an express courier firm. On 7 March 2013, the applicant refused the delivery, which was returned to the sender.

Forms of order sought

11 The applicant claims that the Tribunal should:

– establish the amount and the nature of the recoverable costs in Case F-107/11 Ntouvas v ECDC, having regard to all the circumstances of the case, including the present proceedings for the taxation of costs;

– order the ECDC to pay the costs incurred in the present proceedings for taxation of costs.

12 The ECDC contends that the Tribunal should:

– fix the amount to be reimbursed by the applicant in respect of costs in Case F-107/11 Ntouvas v ECDC at EUR 16 630.81;

– order the applicant to pay the costs of the present proceedings for taxation of costs.

Law

Arguments of the parties

13 At the outset, the applicant submits essentially that, despite his request, he has not yet received the originals of the supporting documents. He claims that mere copies do not allow him to check that the costs were in fact incurred. He also objects that he does not have a breakdown of those costs, concerning their amount, their specific subject-matter and the date and time at which they were incurred. He complains that he knows neither the identity of the supplier nor the references of the invoices corresponding to the expenses incurred. That lack of information prevents him from verifying whether the costs allegedly incurred by the ECDC were genuine.

14 The applicant claims, first, that, given the clear absence of any justification regarding the need for the ECDC to use external lawyers, the fees of those lawyers should not be considered to be either essential or, therefore, recoverable.

15 Secondly, the applicant expresses doubts as to whether certain costs incurred by the ECDC’s agent and connected with his mission in Luxembourg (Luxembourg) are recoverable. He submits that the fact that that agent left the seat of the ECDC, in Stockholm (Sweden), on 2 July 2012 to travel to Amsterdam (the Netherlands) and that he did not arrive back at his place of employment, from Amsterdam, until 19 July 2012 indicates that from 2 to 19 July 2012 that agent was on leave in the Netherlands. The applicant therefore proposes to the Tribunal that the ECDC should be required, by measures of organisation of the procedure, to state where the agent was and his reasons for being there. Consequently, the travel expenses between Stockholm and Amsterdam, in both directions, should be charged to the ECDC, and the applicant should be required only to reimburse the expenses for a return journey between Amsterdam and Luxembourg. In addition, since the ECDC has provided evidence only for the flight of 4 July 2012, there is no proof that the return flight was ever used. According to the applicant’s calculations, only EUR 433.47 can therefore be considered to be essential costs under Article 91(b) of the old Rules of Procedure.

16 Thirdly, the applicant, on the basis of Commission Decision C(2004) 1313 of 7 April 2004 on General implementing provisions adopting the Guide to missions for officials and other servants of the European Commission (‘the 2004 Guide to missions’), challenges the duration of the mission of the agent of the ECDC. He submits that that agent could have completed the return journey between Amsterdam and Luxembourg in a single day, which would have enabled not only the mission expenses but also the accommodation expenses to be reduced. In so far as two days seems excessive to him, the applicant proposes that the amount of the daily allowance should be reduced to EUR 78.20. For the same reason, the applicant takes the view that a stay of one night in a hotel in Luxembourg would have been sufficient. He complains also that, according to the hotel bill, VAT at 2% was paid whereas, he submits, the ECDC is exempt from that tax under Articles 3 and 4 of Protocol (No 7) on the Privileges and Immunities of the European Union (‘Protocol No 7’).

17 Fourthly, while the applicant assesses the price of a bus ticket to and from Luxembourg airport at EUR 3 to be reasonable, he considers that the EUR 67.04 taxi fare from Stockholm airport is not recoverable since the return journey between Stockholm and Amsterdam should not be regarded as included in the agent’s mission. The applicant adds that, in any event, the use of a taxi for the journey to and from the airport is not essential in the absence of exceptional circumstances, which have not been established in the present case. Furthermore, for the reason stated above, the VAT on that fare does not form part of the recoverable expenses either.

18 Lastly, the applicant concludes that the total amount of recoverable expenses is EUR 514.67, an amount which is very close to that of EUR 517.35 which he proposed to the ECDC. In so far as that latter did not accept his offer and persisted in claiming reimbursement of EUR 16 630.81, the costs of the present proceedings should, in the applicant’s opinion, be paid by the ECDC.

19 The ECDC observes, first of all, that the 2004 Guide to missions, which the applicant attached as Annex A7 to his application for taxation of costs, is not applicable in the present case, since it was repealed and replaced by the 2008 Guide to missions, which the ECDC applies to its staff by analogy.

20 So far as concerns the need, as claimed by the ECDC, to use external lawyers, that party recalls that, from 1 November 2011, its legal team consisted of only two people, the applicant and his line manager, so that the latter could not, for reasons of sensitivity and confidentiality, directly manage the case internally. The ECDC furthermore refers to the order in Marcuccio v Commission, T-278/07 P-DEP, EU:T:2013:269, relating to the definition of recoverable costs where an institution has recourse to the assistance of a lawyer, and concludes that the applicant’s argument in that regard is unfounded.

21 As regards its agent’s travel and subsistence expenses, the ECDC submits, first, that, although the agent travelled to Luxembourg to attend the hearing in Case F-107/11 Ntouvas v ECDC during his annual leave, the fact remains that there was no direct flight between Stockholm and Luxembourg; secondly, that no additional expenses were incurred on account of his stopover of several days in Amsterdam, for which he had moreover been granted authorisation; lastly, that in any event the agent had had to travel from Stockholm to Luxembourg to attend the hearing of 5 July 2012. The ECDC submits that, for the same reasons, the taxi expenses in Stockholm are also part of the recoverable costs.

22 So far as concerns, secondly, the agent’s daily allowances corresponding to two days on mission, the ECDC points out that the hearing was scheduled to start at 15.00. and that the agent had to prepare the hearing in the morning with the lawyer and therefore had to be in Luxembourg from the evening before. Those time constraints also warranted the agent’s spending two nights at the hotel in Luxembourg. In addition, pursuant to the Guide to missions applicable in the present case, the daily allowance applicable to Luxembourg is EUR 92 and not EUR 78.20 as the applicant claims.

23 Lastly, the ECDC is of the opinion that, since the applicant refused receipt of the debit note sent by an express courier firm, thereby terminating any possible discussion between them concerning the expenses, he must be ordered to pay the costs of the present proceedings.

Findings of the Tribunal

24 At the outset, it must be pointed out that the mere fact, relied on by the applicant, that only copies of the originals of the invoices were communicated to him does not prove, given the lack of arguments by the applicant capable to calling in question the authenticity of those invoices and their consistency with the originals and whereas it is not apparent from the file that that might be the case, that the expenses thereby incurred by the ECDC, for which it seeks reimbursement from the applicant as recoverable costs in the case in the main proceedings, were not in fact genuinely incurred.

Recoverable costs on account of the involvement of a lawyer

25 Under Article 91(b) of the old Rules of Procedure, the ‘expenses incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of the representative, if they are essential’ are deemed to be recoverable costs. It follows from that provision that the recoverable costs are limited to those incurred for the purposes of the proceedings before the Tribunal and to those which were essential for those purposes (order in Chatzidoukakis v Commission, F-84/10 DEP, EU:F:2014:41, paragraph 20).

26 As is apparent from the first paragraph of Article 19 of the Statute of the Court, applicable before the Tribunal pursuant to Article 7(1) of Annex I to that Statute, the institutions of the European Union are free to have recourse to the assistance of a lawyer. The latter’s remuneration therefore falls within the concept of essential expenses incurred for the purposes of the proceedings, without the institution having to prove that such assistance was objectively justified.

27 As regards how much of the lawyers’ fees could be recovered by the ECDC from the applicant, 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 amount of those fees to be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the Courts of the European Union are 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 (order in Chatzidoukakis v Commission, EU:F:2014:41, paragraph 22, and the case-law cited).

28 Similarly, the fixed nature of the remuneration has no effect on the Tribunal’s assessment of the amount recoverable by way of costs, since it bases its decisions on well-established criteria laid down by case-law and precise information which the parties must provide to it. Whilst the absence of such information does not preclude the Tribunal fixing the amount of the recoverable costs on the basis of an equitable assessment, it none the less places it in a situation where its assessment of the applicant’s claims must necessarily be strict (order in Marcuccio v Commission, EU:T:2013:269, paragraph 20).

29 Furthermore, it is also settled case-law that, in the absence of European Union 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 EU 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 (order in Chatzidoukakis v Commission, EU:F:2014:41, paragraph 23 and the case-law cited).

30 Finally, 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 Tribunal, by the departments 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 departments of the institution are in principle involved in dealing with disputes even before such disputes are brought before the Tribunal (order in Chatzidoukakis v Commission, EU:F:2014:41, paragraph 24, and the case-law cited).

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

32 First, as regards the conditions relating to the nature and purpose of the proceedings and to the difficulties presented by the case, the case at issue was an action for annulment, without any accompanying application for damages, by which the applicant challenged his appraisal report for 2010. The case did not pose any complex legal problems or raise any new legal issues.

33 Secondly, so far as concerns the significance of the dispute from the point of view of EU law, it must be stated that the case did not raise any new legal questions to be resolved in terms of the law on the civil service.

34 Thirdly, as regards the scale of the work entailed in the proceedings before the Tribunal, it is for the Tribunal to take account of the total number of hours of work which can be judged objectively necessary for the purpose of those proceedings (order in Schönberger v Parliament, F-7/08 DEP, EU:F:2010:32, paragraph 29).

35 In the present case, it is apparent from the documents in the file that the proceedings included only one exchange of pleadings, that the Tribunal ruled without adopting any measures of organisation of procedure and that a hearing took place. The application was 25 pages long and contained four pleas for annulment, one of which was split into a number of complaints. As regards the conduct of the procedure, it must be observed that, by a statement of observations registered on 14 June 2012, the applicant requested the Tribunal to declare the defence inadmissible on the ground that the ECDC had had to seek an extension of the time-limit for lodging that pleading on the basis of circumstances which, in his opinion, were not exceptional.

36 Having regard to those factors, and taking into consideration the fact that the ECDC’s lawyers necessarily relied on the work previously carried out by the ECDC’s departments in the context of the pre-litigation procedure, a fair assessment of the essential work performed for the purposes of the main proceedings would be 30 hours of the lawyers’ working time.

37 Lastly, it must be stated that an hourly rate of EUR 250 reflects reasonable and appropriate remuneration payable to an experienced lawyer in a case of this nature (see, to that effect, orders in Marcuccio v Commission, T-515/09 P-DEP, EU:T:2013:510, paragraphs 38 and 44, and Marcuccio v Commission, T-366/10 P-DEP, EU:T:2014:63, paragraphs 46 and 50).

38 Accordingly, the essential lawyers’ fees incurred by the ECDC in connection with the main proceedings must be evaluated at EUR 7 500, that is EUR 250 multiplied by 30.

39 Lastly, as regards the travel and accommodation costs of the lawyer who attended the hearing, they must be allowed in the amount for which evidence is provided in Annex A2 to the application for taxation of costs, that is EUR 130.80 for a train ticket from Brussels (Belgium) to Luxembourg on 4 July 2011 and the return ticket the following day, EUR 17 for a taxi bill in Luxembourg on 4 July 2011 and EUR 179 accommodation costs in Luxembourg. In so far as the file does not enable a link to be established between the taxi bill dated 19 January 2012 for EUR 15.50 and the proceedings before the Tribunal, such expenses cannot be taken into consideration. It follows that the recoverable travel and accommodation costs amount to EUR 326.80.

40 So far as concerns the administrative costs, the sum of EUR 33.72 corresponding to the invoice from an express courier firm for a delivery from Brussels to the Tribunal’s address in Luxembourg on 8 February 2012, the original of the defence having been lodged at the Registry on 9 February 2012, must be considered to be recoverable costs.

41 Consequently, the amount of recoverable costs arising from the participation of the ECDC’s lawyers in the proceedings is EUR 7 860.52.

The amount of the expenses recoverable with regard to the agent of the ECDC

42 It is necessary to examine, in this connection, whether the amounts claimed from the applicant by the ECDC in respect of recoverable costs, representing the expenses incurred by its agent, are limited to those incurred for the purposes of the proceedings before the Tribunal and whether such expenses were essential for that purpose, taking account of the fact that both the applicant and the ECDC rely in their reasoning on the Guide to missions for officials and other servants of the European Commission, the applicant on the 2004 version and the ECDC on the 2008 version, which repealed and replaced that of 2004.

43 The European Union Courts have defined a number of times the expenses incurred by an institution which may, in some circumstances, create claims for that institution against a third party ordered to pay the costs in court proceedings. To do so, the European Union Courts ascertained whether those expenses were indeed essential expenses incurred for the purposes of the proceedings. Thus, the Union Courts distinguished between expenses which are separable from the internal activity of an institution and those which are not and held that only separable expenses, such as travel and subsistence expenses necessarily incurred in connection with the proceedings, fell within the definition of essential expenses incurred for the purposes of the proceedings (order in Kerstens v Commission, T-266/08 P-DEP, EU:T:2012:146, paragraph 21).

44 The ECDC in the present case is seeking reimbursement of EUR 290 corresponding to two nights in a hotel in Luxembourg, of EUR 156.40 in respect of mission expenses, of EUR 720.23 in respect of flight expenses and of EUR 70.04 in respect of taxi and bus expenses.

45 Since the ECDC has explained the need for its agent to stay two nights in Luxembourg to perform his role for the purposes of the oral proceedings and since the sum requested of EUR 145 per day corresponds to the sum actually paid by the agent for his hotel expenses, a sum which moreover does not exceed the ceiling set by the 2008 Guide to missions for accommodation expenses, those expenses must be set at EUR 290. In respect of the daily allowances, since the ECDC proved that they were in fact paid to its agent and that the amount thus paid corresponded furthermore to the rate of EUR 92 per day provided for in respect of missions in Luxembourg by the 2008 Guide to missions, the amount of mission expenses must be fixed at the sum requested, namely EUR 156.40.

46 So far as concerns travel expenses, the Tribunal finds that the ECDC, by producing the corresponding invoices, has proved that the expenses for which it requested reimbursement from the applicant were actually incurred, both in respect of the flight expenses, amounting to EUR 720.23, and in respect of the taxi and bus expenses, amounting to EUR 70.04. Such expenses were essential for the purposes of the proceedings and correspond to the travel expenses of the agent entrusted with the task of representing the ECDC at the hearing, that agent having moreover been duly authorised, in accordance with point 9 of the 2008 Guide to missions, to combine his mission with some days of leave. In those circumstances, the travel costs of the agent must be set at the requested amount of EUR 790.27, without it being necessary to examine whether, on his return to Stockholm, that agent should have travelled by bus rather than by taxi.

47 For the sake of completeness, it must be observed that the applicant’s argument that the ECDC’s agent is exempt from payment of VAT on the hotel and taxi bills has no legal basis. It is sufficient to note that Articles 3 and 4 of Protocol No 7 exempt the European Union from all direct taxes and in particular from customs duties with regard to articles intended for official use, while any advantages conceded to the European Union in terms of indirect taxes, such as VAT, are left to the assessment of the Member States and are subject to the conditions imposed by Protocol No 7. In any event, purchases of services made by officials and agents when they travel on mission are not exempt from VAT.

48 Consequently, the recoverable amount of the costs of the agent of the ECDC must be set at EUR 1 236.67.

Costs incurred in respect of the procedure for taxation of costs

49 Although Article 92 of the old Rules of Procedure, reproduced in Article 106 of the Rules of Procedure, on the procedure for disputing the costs does not provide, unlike Article 86 of the old Rules, reproduced in Article 100 of the Rules of Procedure, concerning judgments or orders closing proceedings, that a decision be made on the costs of the proceedings for taxation of costs in the order on taxation of costs, it must be stated that if, in an action brought on the basis of Article 92 of the old Rules of Procedure disputing the costs of main proceedings, the Tribunal ruled 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.

50 It follows that there is no need to adjudicate separately on the costs and fees incurred for the purposes of the present procedure (order in Schönberger v Parliament, EU:F:2010:32, paragraph 46).

51 None the less, 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.

52 In the present case, the Tribunal notes that the ECDC, in the present proceedings, is represented by its agent, who was assisted by a lawyer.

53 In addition, the applicant has persistently challenged the ECDC’s right to be assisted by the lawyer of its choice, even though, when he submitted the present application for taxation of costs to the Tribunal, on 2 August 2013, he was deemed to have been aware of the order in Marcuccio v Commission (EU:T:2013:269), in which the General Court of the European Union confirmed that, where an institution makes use of the option granted to it by the first paragraph of Article 19 of the Statute of the Court of Justice to be assisted by a lawyer, the latter’s remuneration falls within the definition of essential expenses incurred for the purposes of the proceedings, without the institution being required to prove that such assistance was objectively justified.

54 Lastly, it is apparent from the documents in the file that the applicant refused to accept the debit note when it was sent to him by the ECDC in March 2013 by express courier, thereby terminating the dialogue with his former employer, and that he waited more than four months before filing an application for taxation of costs.

55 Accordingly, the applicant must pay the costs of the ECDC, which may be fixed at EUR 375, corresponding to one and a half hours of work.

56 It follows from all the foregoing that the total amount of costs recoverable by the ECDC from the applicant in respect of Case F-107/11 Ntouvas v ECDC is EUR 9 472.19.

On those grounds,

THE CIVIL SERVICE TRIBUNAL (Second Chamber)

hereby orders:

The total amount of costs to be reimbursed by Mr Ntouvas to the European Centre for Disease Prevention and Control in respect of recoverable expenses in Case F-107/11 Ntouvas v ECDC, is EUR 9 472.19.

Luxembourg, 21 October 2014.

W. Hakenberg M.I. Rofes i Pujol