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

25 June 2014

Willy Buschak

v

European Foundation for the Improvement of Living and Working Conditions (Eurofound)

‛Civil service — Procedure — Taxation of costs — Admissibility — Legal basis for the application — Article 92 of the Rules of Procedure — Interpretation of the application — Delay — Translation costs’

Application:

for taxation of recoverable costs under Article 92 of the Rules of Procedure, in which the European Foundation for the Improvement of Living and Working Conditions (‘Eurofound’) submitted to the Tribunal the present application for taxation of costs following the order in Buschak v Eurofound (F-47/08, EU:F:2010:20).

Held:

The total amount of costs to be reimbursed by Mr Buschak to the European Foundation for the Improvement of Living and Working Conditions in respect of recoverable costs in Buschak v Eurofound, EU:F:2010:20 is EUR 9 250.

Summary

An application for taxation of costs must be made within a reasonable period, beyond which the party ordered to bear the costs would be justified in considering that the party to which costs are payable has waived its right. Moreover, the reasonableness of a period is to be appraised in the light of all the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the parties. (see para. 18) See: order in Dietz v Commission, 126/76 DEP, EU:C:1979:158, para. 1; and judgment in Réexamen Arango Jaramillo and Others v EIB, C-334/12 RX-II, EU:C:2013:134, paras 28 and 33 judgment in Air France v Commission, T-2/93 DEP, EU:T:1995:45, paras 10 et seq.

Fees owed for services provided by a staff member’s lawyer in the pre-litigation procedure do not constitute recoverable costs. Fees owed by the administration to its lawyer for his services prior to the bringing of the action are also not regarded as recoverable costs. Like fees which a staff member owes to his lawyer for his work at the pre-litigation stage, those fees may not be regarded as fees incurred for the purpose of the proceedings before the Civil Service Tribunal, which are the only fees recoverable under Article 91(b) of the Tribunal’s Rules of Procedure. Each party must be able to argue its case in conditions which do not, at any stage in the proceedings, place it at a clear disadvantage compared with the other party. That would be the case if a staff member whose action has been dismissed was expected to pay the fees of the lawyer used by the administration at the pre-litigation stage, whereas if his action is successful, he would not be able to recover the fees he had paid for services provided at the same stage. Furthermore, the prospect of potentially having to pay costs relating to expensive pre-litigation services is likely to hinder access to the courts and thus radically to affect the right to effective judicial protection. (see paras 33, 34) See: judgments in Altmann and Others v Commission, T-177/94 DEP, T-377/94 DEP and T-99/95 DEP, EU:T:1998:139, para. 18; and Nardone v Commission, T-57/99, EU:T:2008:555, para. 139

The Court is not bound by the breakdown of expenses produced by the party seeking to recover costs, but is only required to take account of the total number of hours’ work which appears to be objectively necessary for the purpose of the proceedings. However, the expression ‘taking instruction and drafting of documents’ which appears several times in the details of a lawyer’s services for the period after the application was brought is merely a statement in general terms, requiring the Civil Service Tribunal to make a necessarily strict assessment of whether those services were objectively essential. The same is true of details given in an application for taxation of costs, according to which the lawyer had to ‘draw up the necessary observations’ and ‘provide advice of a general nature’. Moreover, where a party’s lawyer has already assisted that party during proceedings or procedures prior to the relevant action, it is also necessary to have regard to the fact that that lawyer is aware of matters relevant to the action, which is likely to have facilitated his work and reduced the preparation time required for the judicial proceedings. (see paras 38, 40, 42) See: orders in Le Levant 015 and Others v Commission, T-34/02 DEP, EU:T:2010:559, para. 43; and Marcuccio v Commission, T-126/11 P, EU:T:2014:171, para. 38 orders in Schönberger v Parliament, F-7/08 DEP, EU:F:2010:32, para. 29; and Missir Mamachi di Lusignano v Commission, F-50/09 DEP, EU:F:2012:147, para. 21