ORDER OF THE CIVIL SERVICE TRIBUNAL

(Second Chamber)

8 November 2011





Case F-92/09 DEP





U

v

European Parliament

(Procedure – Taxation of costs – Decision rejecting a complaint – Interim proceedings)

Application: in which U applied to the Tribunal for taxation of costs under Article 92(1) of the Rules of Procedure.

Held: The amount of the costs recoverable by the applicant from the Parliament is fixed at EUR 23 670, together with 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 and applicable during the period concerned, increased by 2 points.

Summary

1. Procedure – Costs – Taxation – Recoverable costs – Definition – Expenses necessarily incurred by the parties

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

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

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

3. Procedure – Costs – Taxation – Recoverable costs – Expenses necessarily incurred by the parties

(Arts 278 TFEU and 279 TFEU; Rules of Procedure of the Civil Service Tribunal, Art. 91(b))

4. Procedure – Costs – Taxation – Recoverable costs – Expenses necessarily incurred by the parties

(Rules of Procedure of the Civil Service Tribunal, Art. 91(b); Staff Regulations, Art. 91(4))

5. Procedure – Costs – Taxation – Recoverable costs – Definition – Expenses incurred by the parties in the phase before the action is brought – Not included

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

6. Procedure – Recoverable costs – Costs incurred in the taxation of costs procedure – No need to adjudicate

(Rules of Procedure of the Civil Service Tribunal, Arts 86 and 92)

7. Procedure – Costs – Taxation – Default interest

1. It follows from Article 91(b) of the Rules of Procedure of the Civil Service Tribunal that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Civil Service Tribunal and, second, to those which were necessary for that purpose. Furthermore, it is for the applicant to produce supporting documents such as to prove that the costs which he seeks to have reimbursed have actually been incurred.

(see para. 37)

2. The Union 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 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 Union 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 paras 38, 39)

3. It is accepted that fees payable by the parties to their lawyers relating to the period after the oral procedure may not be counted as recoverable costs. That is particularly true of fees charged for examining judgments and preparing appeals. However, it is apparent from Articles 278 TFEU and 279 TFEU that the purpose of interim proceedings is to reach an interim settlement in connection with proceedings in the main action and pending a decision in those proceedings. The need to take into consideration, in the main proceedings, the expenses involved in examining an order for interim measures arises from the fact that the proceedings are not separate and independent of each other, since they relate to the same case and therefore have material elements in common.

(see para. 46)

See:

31 March 2011, T-5/02 DEP and T-80/02 DEP Tetra Laval v Commission, para. 77

4. With regard to recoverable costs, work involved in reading a decision rejecting a complaint relates, a priori, to the pre-litigation phase of the main action. However, if the proceedings before the Civil Service Tribunal were, exceptionally, brought on the basis of Article 91(4) of the Staff Regulations, in other words immediately after the lodging of the complaint and without awaiting the appointing authority’s decision on that complaint, it is essential for the continuation of the main action that the applicant be apprised of that decision, once it is given, and assess its implications.

(see para. 47)

5. Lawyers’ fees for periods during which no procedural documents were notified must be excluded as not necessarily incurred for the purposes of the proceedings.

(see para. 48)

See:

6 January 2004, C-104/89 DEP Mulder and Others v Council and Commission, para. 47; Willeme v Commission, para. 37

21 December 2010, T-34/02 DEP Le Levant 015 and Others v Commission, para. 33

6. Unlike Article 86 of the Rules of Procedure, Article 92 of the Rules of Procedure of the Civil Service Tribunal, on disputes as to costs, does not provide that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. If, under Article 92 of the Rules of Procedure, the Tribunal gave a decision on a dispute as to costs in the main proceedings and, separately, on fresh costs incurred in connection with that dispute, a further dispute concerning the fresh costs might, in some circumstances, be subsequently brought before it. There is therefore no need to adjudicate separately on the costs and fees incurred for the purposes of the proceedings for the taxation of costs before the Tribunal. None the less, it is for the Union judicature, 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.

(see paras 63-65)

See:

26 April 2010, F-7/08 DEP Schönberger v Parliament, paras 45 to 47

7. Pursuant to Article 92 of the Rules of Procedure of the Civil Service Tribunal, the Tribunal alone has the power, first, to declare that a party must pay default interest on an order as to costs delivered by the Tribunal, and, second, to fix the applicable rate.

(see para. 67)

See:

10 November 2009, F-147/08 DEP X v Parliament, para. 35