ORDER OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

(Second Chamber)

12 December 2012

Case F‑12/10 DEP

Petrus Kerstens

v

European Commission

(Procedure — Taxation of costs — Representation of an institution by one of its agents — Recoverable costs –– Definition — Travel and accommodation expenses and daily subsistence allowances paid to the agent)

Application: Application to the Tribunal by the European Commission pursuant to Article 92(1) of the Rules of Procedure for taxation of recoverable costs following the judgment of the Tribunal of 8 March 2012 in Case F‑12/10 Kerstens v Commission.

Held: The amount of the costs recoverable by the Commission in Case F‑12/10 Kerstens v Commission is fixed at EUR 348.52. The parties are to bear their own costs incurred in the present proceedings for taxation of costs.

Summary

1. Judicial proceedings — Costs — Taxation — Recoverable costs — Expenses necessarily incurred by the parties — Travel and subsistence expenses incurred by the agents of the institutions of the Union — Conditions for reimbursement

(Rules of Procedure of the Civil Service Tribunal, Arts 91(b) and 92)

2. Judicial proceedings — Costs — Taxation — Recoverable costs — Expenses necessarily incurred by the parties — Definition — Remuneration of an official representing the institution before the Courts of the European Union — Not included

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

3. Judicial proceedings — Costs — Taxation — Dispute as to the costs recoverable by an institution represented by one of its agents — Limits

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

1. It follows from Article 91(b) of the Rules of Procedure of the Civil Service Tribunal that recoverable costs are to be limited, first, to those incurred for the purpose of the proceedings before the Tribunal and, second, to those which were essential for that purpose. Accordingly, the fact that the expenses incurred are or are not covered by the budget of the institution concerned is not a criterion on which to determine whether or not they are recoverable. However, only the expenses that can be separated from the internal activity of an institution, such as the travel and subsistence expenses necessitated by the proceedings, are covered by the concept of essential expenses incurred for the purposes of the proceedings.

As regards the question of what expenses incurred by an institution are liable to give rise, where appropriate, to credits on the part of that institution vis-à-vis a third party ordered to pay costs in judicial proceedings, a distinction must be drawn between the expenses that can be separated from the internal activity of the institution and those that cannot. In that regard, while it is the case that the budgetary item allocated to the legal service of an institution for the mission expenses of its staff during a particular year is supposed to cover, inter alia, the expenses occasioned by travel to Luxembourg in order to represent the institution in judicial proceedings, the fact none the less remains that, if at the end of the proceedings the applicant is ordered to pay the costs, certain expenses incurred by the institution and considered essential for the purposes of the proceedings must be repaid to the budget, which is why the institution is required to seek payment of those expenses from the unsuccessful party and, where necessary, initiate the procedure provided for in Article 92 of the Rules of Procedure. Consequently, it must be concluded that the travel and accommodation expenses and the daily subsistence allowances paid to the agent of an institution may be reimbursed as recoverable costs. Likewise, the use of a travel agency is not unreasonable, since it facilitates the administration’s management of its agents’ travel expenses and enables the administration to make savings.

Furthermore, the expenses that can be separated from the internal activity of an institution cannot be set at a fixed rate. If that were so, the institution concerned would be able to include internal expenses, such as expenses of the secretariat or administrative expenses, which cannot be reimbursed as recoverable costs.

(see paras 24- 25, 27, 29, 30, 41)

See:

26 November 2004, C‑198/02 P(R)-DEP EIB v De Nicola, para. 20

23 March 2012, T‑266/08 P-DEP Kerstens v Commission, paras 13 and 21

2. The expenses relating to the activities of an official cannot be regarded as expenses incurred for the purposes of the proceedings and therefore recoverable. Where an institution is represented by one of its officials, the performance of all the tasks of that official is compensated by the remuneration paid to him in accordance with the Staff Regulations. That official, who is subject to a set of rules which governs his financial situation, is required to advise and assist the institution to which he belongs and to perform the tasks entrusted to him in the sphere of his activities, which includes, in addition to representing the institution before the Courts of the European Union, defending the interests of the institution which he represents.

(see para. 26)

See:

7 September 1999, C‑409/96 P-DEP Commission v Sveriges Betodlares and Henrikson, para. 12

Kerstens v Commission, paras 13, 19 and 21

3. It is not for an applicant, in a dispute between the European Union and its servants, to determine how the agent representing the defendant before the Courts of the European Union travels on mission, or the duration of such a mission, provided that the expenses reimbursement of which the defendant claims are essential within the meaning of Article 91(b) of the Rules of Procedure of the Tribunal.

(see para. 36)