ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

8 July 2004

Joined Cases T-7/98 DEP, T-208/98 DEP and T-109/99 DEP

Carlo De Nicola

v

European Investment Bank

(Taxation of costs)

Full text in Italian II - 0000

Application:         for taxation of costs following the judgment of the Court of First Instance of 23 February 2001 in Joined Cases T-7/98, T-208/98 and T-109/99 De Nicola v EIB [2001] ECR-SC I‑A‑49 and II‑185.

Held:         The total amount of the costs to be reimbursed by the European Investment Bank to the applicant in Joined Cases T‑7/98, T‑208/98 and T‑109/99 is fixed in the sum of EUR 28 000.

Summary

1.     Procedure – Costs – Taxation – Recoverable costs – Meaning – Expenses incurred as part of a conciliation procedure – Excluded

(Rules of Procedure of the Court of First Instance, Art. 91(b))

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

(Rules of Procedure of the Court of First Instance, Art. 91(b))

3.     Procedure – Costs – Taxation – Recoverable costs – Meaning – Value added tax – Included in the case of a party not liable to it

(Rules of Procedure of the Court of First Instance, Art. 91(b))

4.     Procedure – Costs – Taxation – Recoverable costs – Expenses necessarily incurred by the parties – Travel and subsistence expenses of persons other than the parties’ lawyers – Conditions for reimbursement – Travel and subsistence expenses and fees of the parties’ lawyers in connection with submission of procedural documents – Excluded

(Rules of Procedure of the Court of First Instance, Art. 91(b))

5.     Procedure – Costs – Taxation – Recoverable costs – Expenses necessarily incurred by the parties – Translation costs – Interpretation of Article 90(b) of the Rules of Procedure of the Court of First Instance

(Rules of Procedure of the Court of First Instance, Arts 90(b) and 91(b))

1.     Under Article 91(b) of the Rules of Procedure of the Court of First Instance, ‘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 Court of First Instance and, second, to those which are necessary for that purpose. By ‘proceedings’, Article 91 of the Rules of Procedure refers only to proceedings before the Court of First Instance, to the exclusion of any prior stage. That follows in particular from Article 90 of the Rules of Procedure, which refers to ‘proceedings before the Court of First Instance’. Therefore, the expenses incurred by the applicant during the conciliation procedure laid down in Article 41 of the Staff Regulations of the European Investment Bank must be considered to be non-recoverable costs.

(see paras 29-30)

See: 75/69 Hake v Commission [1970] [ECR] 901, 902; T-115/94 DEP Opel Austria v Council [1998] ECR II-­2739, para. 26; T­-64/99 DEP UK Coal v Commission [2001] ECR II­-2547, para. 25

2.     The Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but it may 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.

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 paras 31-32)

See: 318/82 DEP Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727, paras 2 and 3; T-­2/93 DEP Air France v Commission [1995] ECR II­-533, para. 16; T-­120/89 DEP Stahlwerke Peine-Salzgitter v Commission [1996] ECR II‑1547, para. 27; Opel Austria v Council, cited above, paras 27 and 28; UK Coal v Commission, cited above, paras 26 and 27

3.     An applicant who cannot recover the value added tax on the goods and services he acquires because he is not liable to it is entitled to be reimbursed the value added tax paid on recoverable costs under Article 91(b) of the Rules of Procedure.

(see paras 45-46)

See: T-­84/91 DEP Meskens v Parliament [1993] ECR II-­757, para. 16; T-460/93 DEP Tête and Others v EIB [1995] ECR II-­229, para. 13

4.     In accordance with Article 91(b) of the Rules of Procedure, a lawyer’s travel and subsistence expenses are deemed to be expenses necessarily incurred by the parties for the purpose of the proceedings. Travel and subsistence expenses incurred by persons other than the lawyer of the applicant in question are recoverable only if the presence of those persons was necessary for the purpose of the proceedings. On the other hand, travel and subsistence expenses of a lawyer in connection with the submission of procedural documents are not regarded as necessarily incurred. Firstly, an extension to time-limits to allow for distance has been provided for by the Community legislature in Article 102(2) of the Rules of Procedure; and, secondly, there are other reliable and patently less onerous methods of sending documents to the Court of First Instance.

(see para. 40)

See: T-­85/94 DEP and T-­85/94 OP DEP Branco v Commission [1998] ECR II‑2667, para. 24

5.     Article 90(b) of the Rules of Procedure of the Court of First Instance cannot be interpreted to mean that translation costs may be recovered. That provision refers solely to the reimbursement of translation costs incurred by the Court of First Instance at the request of a party and that the Registrar considers excessive.

(see para. 41)