Orders nº T-613/18 DEP of Tribunal General de la Unión Europea, October 18, 2019

• Resolution Date: October 18, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-613/18 DEP

(Civil service - Procedure - Taxation of costs - Representation of an institution by external lawyers - Recoverable costs - Reasonable period)

In Case T-613/18 DEP,

FT, former temporary agent of the European Securities and Markets Authority, represented by S. Pappas, lawyer,

applicant,

v

European Securities and Markets Authority (ESMA), represented by G. Filippa and F. Barzanti, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,

defendant,

APPLICATION for taxation of costs following the judgment of the Civil Service Tribunal of 8 October 2015, FT v ESMA (F-39/14, EU:F:2015:117) THE GENERAL COURT (Fourth Chamber),

composed, at the time of deliberation, of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

Facts and proceedings

1 By application lodged at the Registry of the Civil Service Tribunal on 24 April 2014, the applicant, FT, brought an action seeking, in essence, annulment of the decision of 28 June 2013 of the Executive Director of the European Securities and Markets Authority (ESMA) not to renew the FT’s fixed-term contract as a member of the temporary staff, which was due to expire on 31 December 2013.

2 By judgment of 8 October 2015, FT v ESMA (F-39/14, EU:F:2015:117), the Civil Service Tribunal dismissed the action in its entirety and ordered the applicant to bear the costs that the applicant had incurred and to pay those incurred by ESMA. As no appeal was brought against that judgment, it acquired the force of res judicata on 19 December 2015, including the extension of the time limit on account of distance.

3 By letter of 16 May 2017, ESMA requested the applicant to reimburse the amount of EUR 15 398.50 in respect of costs in Case F-39/14, inviting the applicant to submit written observations on that request by 19 June 2017 and declaring itself open to any proposal on the applicant’s part concerning the modalities and timing of payment.

4 By letter of 19 June 2017, the applicant’s lawyer informed ESMA that as the applicant was on sick leave, the applicant would be unable to comply with the 19 June 2017 deadline. Furthermore, he stated that the letter of 16 May 2016 should have been sent not only to the applicant but also to him as the applicant’s lawyer who had represented FT in Case F-39/14. Lastly, he stated that he would consider the request that week and would present his detailed comments, although he was already in a position to take the view that the ‘claim [was] unfounded and, in any event, exorbitant’.

5 By letter of 22 June 2017, the applicant’s lawyer informed ESMA that FT considered, in essence, that, in accordance with the applicable case-law on the subject, the costs claimed for the fees and disbursements of ESMA’s external lawyers should be regarded as ‘non-recoverable’ and that, in any event, FT should pay only an amount equal to that which would have been due if ESMA had been represented in the case in question by its own staff. Finally, without prejudice to the above, the applicant also argued that the amount requested by ESMA was significantly overpriced and exorbitant, taking into account the criteria established by the case-law.

6 Following that letter, the lawyers for ESMA and the applicant entered into negotiations with a view to reaching an amicable agreement on costs.

7 By letter of 9 August 2018, ESMA stated, first, that, on the basis of settled case-law, it was fully entitled to claim reimbursement of the costs incurred by it in Case F-39/14. Next, while expressing its regret that its efforts to reach an amicable resolution with the applicant had not been successful, ESMA informed the applicant that it was requesting the recovery of EUR 12 000.00, rather than the initial amount of EUR 15 398.50. More specifically, ‘as a gesture of good faith’ and in order to avoid additional procedural costs, ESMA stated, first, that it was prepared to withdraw the claim for reimbursement of fees in the amount of EUR 388 relating to its agent’s attendance at the hearing in Case F-39/14 and, secondly, having regard, inter alia, to the matters raised by the applicant in the applicant’s letter of 22 June 2017, it also agreed to reduce its initial request by EUR 3 010.50 in respect of the costs of the services provided by the external lawyers instructed by ESMA. Following those reductions, ESMA issued a debit note in FT’s name in the amount of EUR 12 000, with a time limit for payment of 45 days. In addition, in order to facilitate payment, ESMA reiterated that it was open to any proposal from the applicant regarding payment by instalments. The applicant did not acknowledge receipt of the letter of 9 August 2018.

8 By email of 28 September 2018, 4 days after the expiry of the time limit for payment referred to above, ESMA sent a reminder for the payment of that amount to the applicant’s lawyer. The applicant did not acknowledge receipt of that reminder.

9 By document lodged at the Court Registry on 10 October 2018, the applicant made the present application for taxation of costs pursuant to Article 170(1) of the Rules of Procedure of the General Court.

10 By email of 15 October 2018, as ESMA had not been informed of that application for taxation of costs and had not received a reply to its letter of 9 August 2018 or to its email of 28 September 2018, it sent a second and final reminder to the applicant’s lawyer.

11 By email dated the same day, the applicant’s lawyer replied to ESMA stating that, as noted in his letter of 22 June 2017, he considered the request for reimbursement of costs to be unlawful and that therefore he was obliged to bring the matter before the General Court of the European Union.

Forms of order sought

12 The applicant claims that the Court should:

- declare that the costs claimed by ESMA, in the amount of EUR 12 000, in the case giving rise to the judgment of 8 October 2015, FT v ESMA (F-39/14, EU:F:2015:117), are not recoverable as the reasonable time for claiming them has elapsed without ESMA taking any action;

- in the alternative, declare that the sum of EUR 12 000 claimed by ESMA is exorbitant and fix the amount of costs recoverable by ESMA at EUR 7 000;

- order ESMA to bear its own costs and to pay those incurred by the applicant in the present taxation of costs proceedings.

13 In its observations, lodged at the Court Registry on 28 November 2018, ESMA contends that the Court should:

- fix the amount of costs recoverable in Case F-39/14 at EUR 12 000;

- order the applicant to pay the costs of the present taxation of costs proceedings.

Law

14 Under Article 170(1) to (3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, on application by the party concerned, to give its decision by way of an order from which no appeal is to lie, after giving the party concerned an opportunity to submit its observations.

Admissibility of the application for taxation of costs

15 As a preliminary point, it should be noted that, in accordance with Article 170(1) of the Rules of...