CELEX:62019CO0601: Ordonanța Curții (Camera a șaptea) din 3 septembrie 2024.#Agenţia pentru Drepturi Fundamentale a Uniunii Europene (FRA) împotriva lui BP.#Cauza C-601/19 P-DEP.

ORDER OF THE COURT (Seventh Chamber)

3 September 2024 (*)

( Taxation of costs )

In Case C‑601/19 P‑DEP,

APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court of Justice, brought on 8 February 2024,

European Union Agency for Fundamental Rights (FRA), represented, initially, by C. Manolopoulos, and subsequently by S. Rautio, acting as Agent, and by B. Wägenbaur, Rechtsanwalt,

applicant,

v

BP, represented by E. Lazar, avocată,

defendant,

THE COURT (Seventh Chamber),

composed of F. Biltgen, President of the Chamber, N. Wahl (Rapporteur) and M.L. Arastey Sahún, Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Advocate General,

makes the following

Order

1        The present case concerns the taxation of the costs incurred by the European Union Agency for Fundamental Rights (FRA) in Case C‑601/19 P.

2        By an appeal lodged on 7 August 2019 under Article 56 of the Statute of the Court of Justice of the European Union, BP sought to have set aside the judgment of the General Court of the European Union of 11 July 2019, BP v FRA (T‑888/16, ‘the judgment under appeal’, EU:T:2019:493), by which the General Court dismissed her action seeking, first, annulment of FRA’s decision of 4 April 2016 not to renew her contract as a member of the contract staff, adopted as a result of the implementation of the judgment of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356), and, second, compensation for the harm which she had allegedly suffered.

3        By its judgment of 17 December 2020,BP v FRA (C‑601/19 P, EU:C:2020:1048), the Court dismissed the appeal and ordered BP to bear her own costs and to pay those incurred by FRA.

4        By letter dated 15 July 2022, FRA informed BP of the amount of the costs which it had incurred in connection with that appeal and asked BP to submit any comments she might have, otherwise FRA would issue a debit note for the amount of EUR 8 500.

5        Between 28 July 2022 and 31 July 2023 there were several exchanges of correspondence between BP and FRA, in which BP argued, first, that the request for reimbursement of costs had been made belatedly and, second, that the amount of costs claimed appeared to be inappropriate.

6        Since no agreement was reached between the parties on the amount of recoverable costs relating to the appeal proceedings in Case C‑601/19 P, FRA brought the present application under Article 145 of the Rules of Procedure of the Court.

 Forms of order sought

7        FRA requests that the Court fix the amount of recoverable costs to be paid by BP in respect of the costs incurred in the proceedings in Case C‑601/19 P at EUR 8 500.

8        BP contends that the Court should dismiss FRA’s application and order it to pay the costs incurred in the taxation of costs proceedings.

 Arguments of the parties

9        In support of its application, FRA submits, in the first place, that, in view of BP’s persistent refusal to reimburse the costs of the proceedings which gave rise to the judgment of 17 December 2020, BP v FRA (C‑601/19 P, EU:C:2020:1048), there is no doubt that there is a dispute concerning the costs to be recovered within the meaning of Article 145 of the Rules of Procedure of the Court.

10      In the second place, FRA claims that it had submitted its request for reimbursement of costs to BP within a reasonable period. BP could not therefore legitimately have thought that FRA had waived its right to claim reimbursement of costs from her. In the circumstances of the present case, the period of 19 months between the date on which the Court delivered the judgment BP v FRA (C‑601/19 P, EU:C:2020:1048), namely 17 December 2020, and the date of FRA’s first letter concerning the recovery of costs, namely 15 July 2022, cannot be regarded as unreasonable. Not only had it been in line with the requirements of the principle of good administration to await the outcome of the other appeal proceedings, but it should also be noted that the judgment BP v FRA (C‑601/19 P, EU:C:2020:1048) was delivered at the height of the COVID-19 pandemic.

11      In the third place, as regards the merits of the application for taxation of costs, FRA claims that the total amount of EUR 8 500 which it paid to an external lawyer in respect of his fees in connection with Case C‑601/19 P was necessary within the meaning of Article 144(b) of the Rules of Procedure of the Court and the relevant case-law. It states that, in the present case, it is claiming only the amount of the fees billed by that lawyer in respect of the hours of work which it had contractually agreed with that lawyer, even though the lawyer in actual fact spent a greater number of hours working on that case.

12      First of all, as regards the amount of work which the proceedings generated, FRA recalls that the written procedure in Case C‑601/19 P required the drafting of two written submissions. It has not been established that the lawyers’ fees claimed, which correspond to 38.6 hours’ work at the hourly rate of EUR 220, were not objectively necessary.

13      Next, as regards the degree of difficulty of the case, FRA claims, first, that BP’s assertion that the present case presented no difficulty does not correspond to reality.

14      Second, although the external lawyer has been able progressively to familiarise himself with the actions brought by BP since those brought in Case F‑38/12, that does not mean that Case C‑601/19 P did not present any difficulty.

15      Third, FRA submits that the fact that no hearing took place in Case C‑601/19 P does not mean that the case was not complex, but that the Court considered that it was sufficiently informed and therefore could give its ruling without a hearing.

16      Fourth, FRA considers that it is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union that an agency has the right to have recourse to the assistance of an external lawyer, without that assistance having to undergo a test of necessity.

17      Lastly, as regards the importance of the case, FRA argues that, in so far as the judgment under appeal concerned a decision not to renew an employment contract, the subject matter of that case was inherently important since it potentially concerned the many members of the temporary staff and contract staff working for the EU institutions and agencies under a fixed-term contract. The case was also important in so far as BP thus challenged the lawfulness of the judgment under appeal, which concerned a decision by which FRA had implemented the judgment of the General Court of 3 June 2015, BP v FRA (T‑658/13 P, EU:T:2015:356).

18      In her defence, BP argues, in the first place, that between the date of delivery of the judgment BP v FRA (C‑601/19 P, EU:C:2020:1048), namely 17 December 2020, and the date on which FRA contacted her for the first time with a view to claiming costs in connection with that case, namely 15 July 2022, 19 months had passed, to which it is appropriate to add approximately 6 months corresponding to the time taken by FRA to bring, on 8 February 2024, following BP’s letter of 31 July 2023, which remained unanswered, the present application for taxation of costs. That total period of 25 months, calculated from the delivery of that judgment, renders FRA’s application for taxation of costs inadmissible.

19      In that regard, BP takes the view that the present case differs, for example, from those which gave rise to the orders of the General Court to which FRA refers, in so far as, in those cases, the party ordered to pay the costs had been contacted shortly after the judgment ordering it to pay the costs had been delivered. Moreover, in her view, FRA cannot rely on the order of 18 October 2019, FT v ESMA (T‑613/18 DEP, EU:T:2019:774).

20      In addition, BP considers that FRA fails to indicate in what way the COVID-19 pandemic constituted an extraordinary circumstance that allegedly prevented it from communicating its claim for recovery of costs within a reasonable period.

21      In the second place, BP submits that the actions and irregularities giving rise to the present case should have led FRA to waive recovery of the costs relating to proceedings before the Courts of the European Union, as she requested in a letter dated 17 October 2022, in accordance with Article 101(2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).

22      In the third place, BP takes the view that, in the absence of adequate justification and transparency in the billing process, FRA’s request for reimbursement of the total amount of the fees paid to the external lawyer cannot be regarded as justified or necessary.

23      As regards, first of all, the extent of work required, BP considers that, in the absence of a clear breakdown of the tasks performed and the time spent on each of them, the reasonable nature of the total amount claimed cannot be appropriately assessed. Moreover, the hourly rate charged should be assessed solely on the basis of the circumstances of the case in question.

24      Next, as regards the difficulty of the case, BP submits, first, that her legitimate pursuit of justice and her efforts to present her position cannot be regarded as attempts to complicate the case. Second, BP is of the opinion that the number of hours for which reimbursement is claimed is excessive, especially since there was no hearing in that case. Third, BP calls into question the need for an agency of the European Union such as FRA to have recourse to an external lawyer, having regard to the fact that that agency has a legal service which at that time comprised a professional lawyer.

25      Lastly, BP considers that the importance of the case derives not only from its potential impact on other workers, but also from the observance of the individual rights and equitable treatment of the party directly concerned. The importance of the case should therefore support finding a fair and equitable solution rather than justifying excessive fees.

26      In the fourth place, BP submits that it is of utmost importance to take into consideration the circumstances of the present case in the assessment of FRA’s application for taxation of costs. BP is requested to pay the costs of FRA’s reprehensible conduct, whereas she herself acted in good faith and in the public interest. In her view, it is unjust to impose on her the financial consequences of a legal ‘battle’ resulting from her commitment to integrity and accountability.

 Findings of the Court

 Admissibility

27      Under Article 145(1) of the Rules of Procedure of the Court, applicable to proceedings on appeal pursuant to Article 184(1) of those rules of procedure, where there is a dispute concerning the costs to be recovered, the Court of Justice is, on application by the party concerned and after hearing the opposite party and the Advocate General, to make an order.

28      First, it is necessary to rule on whether, on the date on which the present application for taxation of costs was submitted, there was a dispute as to the costs to be recovered and whether the parties attempted to reach agreement on any disputed amounts (order of 9 November 2017, Nestlé Unternehmungen Deutschland v Lotte, C‑586/15 P‑DEP, EU:C:2017:855, paragraph 9 and the case-law cited).

29      In the present case, it is apparent both from the present application and from the documents in the file submitted to the Court that, despite numerous exchanges, the parties have not reached an agreement on costs. It appears that, even though FRA stated, in a letter dated 12 July 2023, that it was prepared, as a final offer, to reduce the amount of the costs relating to Case C‑601/19 P to EUR 5 100, BP, in her letter of 31 July 2023, asked that agency to consider waiving the recovery of costs or reducing the amount of the sums claimed. As a result, it appears that, on the date of submission of the present application, there was a dispute concerning the costs to be recovered.

30      As regards, second, BP’s argument that the application for taxation of costs was not submitted within a reasonable period, it should be noted that Article 145 of the Rules of Procedure of the Court does not make the submission of an application for taxation of costs subject to any time limit. Similarly, neither the Rules of Procedure of the Court nor the case-law of the Court prescribe a time limit for the intermediate steps in taxation of costs proceedings taken after a claim for recovery of costs has been communicated to the party ordered to pay the costs.

31      Nevertheless, it is apparent from settled case-law that a claim for recovery of costs must be submitted to the party ordered to pay the costs within a reasonable period (order of 20 January 2021, Council v Gul Ahmed Textile Mills, C‑100/17 P‑DEP, EU:C:2021:41, paragraph 21 and the case-law cited).

32      In the present case, it must be noted that approximately 19 months separate the judgment of 17 December 2020, BP v FRA (C‑601/19 P, EU:C:2020:1048), ordering BP to pay the costs in Case C‑601/19 P, from the initial claim for recovery of costs which was sent to BP by FRA on 15 July 2022. In addition, it appears that approximately six months elapsed between BP’s last letter of 31 July 2023, challenging FRA’s request for recovery of costs, and the present application for taxation of costs.

33      Although the time which elapsed between those various events may be perceived as relatively long, it must nevertheless be held that FRA made its application for taxation of costs within a period not exceeding the reasonable period beyond which it would have been justified to consider, first, that that agency had lost its right to recover the costs necessarily incurred for the purpose of the proceedings and, second, that BP could legitimately assume that FRA had waived that right.

34      In those circumstances, FRA’s application for taxation of costs is admissible.

 Substance

35      Under Article 144(b) of the Rules of Procedure of the Court, which is applicable to appeal proceedings by virtue of Article 184(1) of those rules of procedure, ‘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.

36      It follows from the wording of that provision that the remuneration of a lawyer is one of the expenses necessarily incurred within the meaning of that provision. It also follows that the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (order of 4 October 2022, Freistaat Bayern v Bundesverband Souvenir – Geschenke – Ehrenpreise, C‑488/16 P‑DEP, EU:C:2022:768, paragraph 16 and the case-law cited).

37      As is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, the EU institutions are, as regards the manner in which they intend to be represented or assisted before the Court, 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. Therefore, where the EU institutions are assisted by a lawyer or appoint as an agent a person who is not a member of their staff, who they must pay, the remuneration of that lawyer or that person comes within the concept of ‘expenses necessarily incurred’ for the purpose of the proceedings, without that institution being required to demonstrate that the involvement of that lawyer or that person was objectively justified (order of 10 October 2013, CPVO v Schräder, C‑38/09 P‑DEP, EU:C:2013:679, paragraphs 20 and 21 and the case-law cited).

38      For the purposes of the application of that provision, the bodies, offices and agencies of the European Union are to be equated with those institutions (see, to that effect, orders of 10 October 2013, CPVO v Schräder, C‑38/09 P‑DEP, EU:C:2013:679, paragraph 22, and of 3 October 2022, EUIPO v Schneider, C‑116/19 P‑DEP, EU:C:2022:751, paragraphs 17 to 19).

39      It should also be borne in mind that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but rather may determine the amount of those fees to be recovered from the party ordered to pay the costs. Moreover, in ruling on the application for taxation of costs, those courts are not obliged to take account of any national scales of lawyers’ fees (see, inter alia, order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 29 and the case-law cited).

40      In the absence of provisions of EU law laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the subject matter and nature of the proceedings, their significance from the point of view of EU law as well as 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 (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 30 and the case-law cited).

41      Furthermore, in fixing the recoverable costs, the Court is to take account of all the circumstances of the case up to the making of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 31 and the case-law cited).

42      It is in the light of those considerations that the amount of the recoverable costs in the present case must be assessed.

43      In the first place, as regards the subject matter and nature of the dispute, it should be noted that, although the proceedings concerned are appeal proceedings which, by their very nature, are limited to questions of law and are not intended, except in the case of distortion of the facts, to establish or assess the facts of the dispute, the appeal nonetheless raised a number of issues not addressed in the judgment under appeal in so far as they related in part to the conduct of the proceedings before the General Court.

44      As regards, in the second place, the importance of the dispute from the point of view of EU law and the difficulties presented by the case, it must be pointed out that BP put forward five grounds in support of her appeal.

45      The first ground of appeal alleged, first, that the General Court had made a manifest error in the assessment of the second plea in law put forward at first instance, alleging that the rules adopted by FRA concerning appraisal and reclassification of its members of staff and renewal of contracts of employment were unlawful, distortion of the facts and evidence and infringement of the obligation to state reasons and of the right to be heard and, second, that the General Court had made a manifest error in the assessment of BP’s fourth head of claim, seeking a finding that the rules adopted by FRA concerning the appraisal and reclassification of its members of staff and renewal of employment contracts were unlawful, failure to respond to the third head of claim, seeking compensation for the damage suffered as a result of that unlawfulness, and infringement of the right to an effective remedy.

46      By the second ground of appeal, BP submitted, in essence, that the General Court, first, had failed to examine the third head of her claim, seeking compensation for the harm resulting from FRA’s failure to adopt lawful rules concerning the appraisal and reclassification of its members of staff and the renewal of their contracts, which constituted a failure to act within the meaning of Article 265 TFEU and, second, had failed to exercise its unlimited jurisdiction, as requested under her fifth head of claim, thereby disregarding the requirements stemming from its obligation to ensure that the law is observed, in accordance with Article 19(1) TEU and Article 268 TFEU.

47      The third ground of appeal alleged infringement, by the General Court, of Articles 35, 36, 64 and 65 of the Rules of Procedure of the General Court, infringement of the principle of audi alteram partem, disregard for the rules of evidence, infringement of the right to be heard and the right to a fair trial and infringement of Article 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

48      The fourth ground of appeal alleged infringement, by the General Court, of the rights of the defence, the right to be heard and the right of access to relevant information, guaranteed under Article 41 of the Charter, distortion of the evidence, infringement of the right to effective judicial protection and a fair trial, guaranteed under Article 47 of the Charter, and a failure to state reasons.

49      By the fifth ground of appeal, BP submitted that, in ordering her to pay the costs in their entirety, the General Court had infringed Articles 134 and 135 of the Rules of Procedure of the General Court. In that regard, she argued, inter alia, that the General Court, first, had not stated why the case did not lend itself to the application of Article 135(1) of those rules of procedure concerning the division of costs on an equitable basis and, second, had not examined the possibility of applying Article 135(2) of those rules of procedure, concerning unreasonable or vexatious costs.

50      In addition, in her reply BP had raised a ground of challenge alleging an irregularity in the composition of the panel of judges.

51      As regards, in the third place, the financial interests which the parties had in the proceedings, it must be pointed out that the appeal was of some economic importance to the parties, it being noted that the issues raised in that case were not strictly confined to the case of BP.

52      As regards, in the fourth and final place, the amount of work required by the appeal proceedings, FRA stated, in its application for taxation of costs, that it merely took into account the number of hours contractually agreed with its external lawyer, namely 38.6 hours, invoiced at an hourly rate of EUR 220, those hours involving the examination of the appeal and the preparation and finalisation of the response and the rejoinder. The total amount calculated on that basis was EUR 8 500.

53      In that regard, it is important to recall that, when fixing the amount of the recoverable costs, the Court must take account of the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings, irrespective of the number of lawyers amongst whom the work was shared (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 39 and the case-law cited).

54      For the purpose of determining the number of hours of work which may be regarded as objectively necessary in respect of the appeal proceedings in question and, therefore, the amount of recoverable costs, account must be taken, first, of the fact that the appeal brought by BP contained extensive arguments set out over more than 25 pages which overlapped only in part with the issues addressed in the judgment under appeal. Although FRA’s lawyer certainly had, at the appeal stage, some knowledge of the background to the dispute, the appeal sought in part to call into question the General Court’s handling of the case from a procedural point of view.

55      Consequently, it must be held that the handling of the appeal involved a certain investment, on account of the numerous arguments put forward by BP in her appeal. Accordingly, the number of hours of work invoiced by the external lawyer, namely 38.6 hours, is not unreasonable for the purposes of those proceedings.

56      As regards the hourly rate of the external lawyer, fixed at EUR 220, it should be noted that it does not appear disproportionate in the light of the rates charged in similar cases and the stage of the proceedings in the present case (see, inter alia, order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 40 and the case-law cited).

57      In those circumstances, the Court considers it appropriate to fix the amount of recoverable costs in respect of the remuneration of FRA’s lawyer in the appeal proceedings at EUR 8 500.

58      As regards BP’s argument that, in the light of the particular circumstances of the present case, the Court should dismiss FRA’s claim for recovery of costs, it must be borne in mind that the taxation of costs procedure referred to in Article 145 of the Rules of Procedure of the Court of Justice constitutes a procedure distinct from and independent of the allocation of the costs on which the Court gives a decision pursuant to Article 137 of those rules of procedure in the judgment or order which closes the proceedings.

59      The independence of those two sets of proceedings means, in particular, that it is impossible to call into question the allocation of costs in the taxation of costs proceedings. Indeed, an application from a party which does not seek a decision from the Court concerning a dispute between him or her and the other party regarding the amount or the calculation of costs which he or she has been ordered to pay, but which seeks to have that order varied in his or her favour or revoked, does not constitute a dispute concerning the costs to be recovered within the meaning of Article 145 of the Rules of Procedure of the Court.

60      That is the case here, since, by her argument, BP relies on FRA’s conduct, which led her, inter alia, to bring actions, to release her from the obligation to pay the costs which she was ordered to pay in the judgment of 17 December 2020, BP v FRA (C‑601/19 P, EU:C:2020:1048). It follows that BP’s claim seeking to call into question the allocation of costs does not constitute a dispute concerning the costs to be recovered within the meaning of Article 145(1) of the Rules of Procedure of the Court and is, therefore, inadmissible.

61      In the light of all the foregoing considerations, the costs recoverable by FRA from BP, including those relating to the present taxation proceedings, may be fairly assessed at a total amount of EUR 8 500.

On those grounds, the Court (Seventh Chamber) hereby orders:

The total amount of the costs to be reimbursed by BP to the European Union Agency for Fundamental Rights (FRA) in respect of Case C‑601/19 P is fixed at EUR 8 500.

Luxembourg, 3 September 2024.

*      Language of the case: English.