61976O0126

1 . PROCEDURE - COSTS - RECOVERABLE COSTS - CLAIM FOR REIMBURSEMENT - TIME-LIMIT

( RULES OF PROCEDURE , ART . 73 )

2 . PROCEDURE - COSTS - RECOVERABLE COSTS - EXPENSES NECESSARILY INCURRED BY THE PARTIES - TRAVEL AND SUBSISTENCE EXPENSES AND THE REMUNERATION OF AGENTS , ADVISERS OR LAWYERS OF THE COMMUNITY INSTITUTIONS - CONDITIONS FOR REIMBURSEMENT

( STATUTE OF THE COURT OF JUSTICE OF THE EEC , FIRST PARAGRAPH OF ART . 17 ; RULES OF PROCEDURE , ART . 73 ( B ))

1 . A PARTY CANNOT LOSE HIS RIGHT TO RECOVER THE COSTS REFERRED TO IN ARTICLE 73 OF THE RULES OF PROCEDURE WHERE HE HAS CLAIMED REIMBURSEMENT FROM THE OTHER PARTY WITHIN A REASONABLE PERIOD .

2 . WHEN , IN PROCEEDINGS BEFORE THE COURT , AN INSTITUTION AVAILS ITSELF OF THE OPTION ALLOWED IT BY THE FIRST PARAGRAPH OF ARTICLE 17 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC TO BE ASSISTED BY A LAWYER OR TO APPOINT AS AGENT A PERSON WHO IS NOT A MEMBER OF ITS STAFF THE REMUNERATION OF THAT LAWYER OR AGENT COMES WITHIN THE CONCEPT OF ' ' EXPENSES NECESSARILY INCURRED . . . FOR THE PURPOSE OF THE PROCEEDINGS ' ' WITHIN THE MEANING OF ARTICLE 73 ( B ) OF THE RULES OF PROCEDURE AND MAY ACCORDINGLY BE RECOVERED BY VIRTUE OF THAT PROVISION .

WHEN , ON THE OTHER HAND , THE INSTITUTION THINKS THAT ITS INTERESTS WILL BE BETTER SERVED BY ITS BEING REPRESENTED BY ONE OF ITS OFFICIALS , ACTING AS AGENT , IT CANNOT CLAIM UNDER ARTICLE 73 ( B ) ' ' EXPENSES RELATING TO THE WORK OF THE AGENT IN CONNEXION WITH THE PROCEEDINGS ' ' , THAT IS TO SAY A PROPORTION OF THE REMUNERATION WHICH IT OWES THAT OFFICIAL UNDER THE STAFF REGULATIONS . IN FACT , SUCH REMUNERATION CONSTITUTES THE COUNTERPART OF THE PERFORMANCE OF THE WHOLE OF THE DUTIES ASSIGNED TO THE PERSON CONCERNED , INCLUDING , WHERE NECESSARY , THE DEFENCE , IN PROCEEDINGS BEFORE THE COURT , OF THE INSTITUTION ' S INTERESTS ; IT CANNOT THEREFORE BE REGARDED AS HAVING BEEN EXPENDED ' ' FOR THE PURPOSE OF THE PROCEEDINGS ' ' . THE POSITION IS DIFFERENT WITH REGARD TO THE COSTS RELATING TO THE AGENT ' S PARTICIPATION IN THE ORAL PROCEDURE , NAMELY HIS TRAVELLING EXPENSES AND THE DAILY SUBSISTENCE ALLOWANCE .

IN CASE 126/76 - COSTS

FIRMA GEBRUDER DIETZ

V

COMMISSION OF THE EUROPEAN COMMUNITIES ,

1THE APPLICANT IN THE MAIN ACTION CLAIMS IN THE FIRST PLACE THAT THE COMMISSION HAS LOST ITS RIGHT TO RECOVER THE COSTS INCURRED BY IT SINCE IT HAS ALLOWED SIX MONTHS TO PASS BEFORE CLAIMING THEM . THAT ARGUMENT MUST BE REJECTED . THE JUDGMENT ORDERING THE APPLICANT TO PAY THE COSTS WAS DATED 15 DECEMBER 1977 AND IT WAS BY LETTER OF 14 MARCH 1978 THAT THE COMMISSION SENT ITS DETAILED ACCOUNT OF THE COSTS WHOSE RECOVERY IT WAS CLAIMING .

IN DOING SO THE COMMISSION ACTED WITHIN A REASONABLE PERIOD WHICH CAN BY NO MEANS BE TAKEN TO IMPLY THAT IT HAD WAIVED ITS RIGHTS .

2SECONDLY THE APPLICANT IN THE MAIN ACTION CLAIMS THAT THE AMOUNT OF FB 75 000 CLAIMED AS ' ' PAYMENT TO THE AGENT OF THE COMMISSION FOR HIS WORK IN CONNEXION WITH THE PROCEEDINGS ' ' CANNOT BE REGARDED AS RECOVERABLE EXPENSES WITHIN THE MEANING OF ARTICLES 69 AND 73 OF THE RULES OF PROCEDURE .

3FOR ITS PART THE DEFENDANT IN THE MAIN ACTION REMARKS THAT ALTHOUGH ' ' THE PRACTICE FOLLOWED BY THE COMMISSION HITHERTO WAS NOT TO CLAIM COSTS OTHER THAN TRAVELLING EXPENSES AND SUBSISTENCE ALLOWANCES FOR THE OFFICIAL REPRESENTING IT BEFORE THE COURT OF JUSTICE ' ' , IT IS IMPORTANT ' ' TO MODIFY THE PRACTICE ON THIS POINT AND TO CLAIM IN ADDITION THE EXPENSES RELATING TO WORK OF AN OFFICIAL WHO REPRESENTS IT EXCLUSIVELY ' ' . ACCORDING TO THE DEFENDANT IN THE MAIN ACTION , THIS POINT OF VIEW IS JUSTIFIED FIRST BY THE WORDING OF ARTICLE 73 ( B ) OF THE RULES OF PROCEDURE ACCORDING TO WHICH EXPENSES NECESSARILY INCURRED BY THE PARTIES FOR THE PURPOSE OF THE PROCEEDINGS INCLUDE ' ' IN PARTICULAR THE TRAVEL AND SUBSISTENCE EXPENSES AND REMUNERATION OF AGENTS , ADVISERS OR LAWYERS ' ' . IT IS JUSTIFIED FURTHERMORE BY CONSIDERATIONS OF JUDICIAL POLICY SINCE THE GROWING NUMBER OF CASES DOES NOT MAKE IT DESIRABLE ' ' TO ENCOURAGE ACTIONS AGAINST THE COMMUNITY BY ENSURING THAT THEY ARE SO FAR AS POSSIBLE FREE OF COSTS ' ' . IT IS MOREOVER ILLOGICAL THAT THE LEGAL COSTS TO BE BORNE BY THE PARTY WHICH FAILS IN ITS ACTION SHOULD DIFFER VERY CONSIDERABLY ACCORDING TO WHETHER THE COMMISSION FELT THAT IT SHOULD BE ASSISTED OR REPRESENTED BY AN ADVOCATE OR HAS APPOINTED ONE OF ITS OFFICIALS AS AN AGENT . THE DEFENDANT IN THE MAIN ACTION ALSO REFERS TO PRACTICE IN SEVERAL MEMBER STATES WHERE COURT COSTS INCLUDE REMUNERATION OR ALLOWANCES FOR THE WORK OF OFFICIALS WHEN THEY ARE DEFENDING THE INTERESTS OF PUBLIC BODIES BEFORE THE COURTS .

4IN THE WORDS OF ARTICLE 73 OF THE RULES OF PROCEDURE OF THE COURT THE FOLLOWING ' ' SHALL BE REGARDED AS RECOVERABLE COSTS :

. . .

( B ) 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 ' ' .

5ACCORDING TO ARTICLE 17 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC , WHEREAS PRIVATE PARTIES MUST BE REPRESENTED BEFORE THE COURT BY A LAWYER ENTITLED TO PRACTISE BEFORE A COURT OF A MEMBER STATE , THE STATES AND THE INSTITUTIONS OF THE COMMUNITY ARE TO BE REPRESENTED BY AN AGENT , WHO MAY MOREOVER BE ASSISTED BY AN ADVISER OR BY A LAWYER . AS REGARDS THE MANNER IN WHICH THE INSTITUTIONS INTEND TO BE REPRESENTED OR ASSISTED BEFORE THE COURT THE INSTITUTIONS ARE THEREFORE FREE TO DECIDE WHETHER THEY WILL HAVE RECOURSE TO THE ASSISTANCE OF A LAWYER OR TO APPOINT AS AN AGENT EITHER ONE OF THEIR OFFICIALS OR A PERSON WHO IS NOT A MEMBER OF THEIR STAFF .

6WHEN , AVAILING THEMSELVES OF THAT OPTION , THEY ARRANGE TO BE REPRESENTED BY A LAWYER OR APPOINT AS AGENT A PERSON WHO IS NOT A MEMBER OF THEIR STAFF AND WHO MUST BE PAID , IT IS CLEAR THAT SUCH REMUNERATION COMES WITHIN THE CONCEPT OF EXPENSES NECESSARILY INCURRED FOR THE PURPOSE OF THE PROCEEDINGS . WHEN , ON THE OTHER HAND , THEY THINK THAT THEIR INTERESTS WILL BE BETTER SERVED BY THEIR BEING REPRESENTED IN AN ACTION BEFORE THE COURT BY ONE OF THEIR OFFICIALS , THE SITUATION IS DIFFERENT . SUCH AN OFFICIAL , BEING SUBJECT TO STAFF REGULATIONS WHICH GOVERN HIS PECUNIARY STATUS , IS REQUIRED TO ASSIST AND TENDER ADVICE TO HIS INSTITUTION AND TO BE RESPONSIBLE FOR THE PERFORMANCE OF THE DUTIES ASSIGNED TO HIM WITHIN THE SCOPE OF HIS EMPLOYMENT , WHICH INCLUDES , IN CONNEXION WITH REPRESENTATION BEFORE THE COURT , THE DEFENCE OF THE INTERESTS OF THE INSTITUTION WHICH HE REPRESENTS .

THE PERFORMANCE OF HIS DUTIES AS A WHOLE FINDS ITS COUNTERPART IN THE REMUNERATION ALLOTTED TO HIM UNDER THE STAFF REGULATIONS , SO THAT EXPENSES IN CONNEXION WITH THE WORK OF THE OFFICIAL CANNOT BE CONSIDERED AS EXPENSES INCURRED FOR THE PURPOSE OF THE PROCEEDINGS AND THEREFORE AS RECOVERABLE .

7IN THESE CIRCUMSTANCES THE CLAIM OF THE DEFENDANT IN THE MAIN ACTION FOR RECOVERABLE COSTS TO BE DETERMINED SO AS TO INCLUDE PAYMENT FOR THE WORK OF THE OFFICIAL WHO REPRESENTED IT MUST BE DISMISSED .

8THE APPLICATION RELATING TO SO MUCH OF THE COSTS AS RELATES TO THE AGENT ' S PARTICIPATION IN THE ORAL PROCEDURE , NAMELY HIS TRAVELLING EXPENSES AND A DAILY SUBSISTENCE ALLOWANCE , AMOUNTING TOGETHER TO FB 3 137 , IS JUSTIFIED .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION FOR RECOVERABLE COSTS TO BE DETERMINED SO AS TO INCLUDE PAYMENT FOR THE WORK OF THE OFFICIAL WHO REPRESENTED THE COMMISSION IS DISMISSED .

2 . THE COSTS RELATING TO THE PARTICIPATION OF THE COMMISSION ' S AGENT IN THE ORAL PROCEDURE , AMOUNTING TO FB 3 137 , ARE TO BE REGARDED AS RECOVERABLE .