In December 2020, the EU’s border police Frontex filed a lawsuit against us in order to force us to pay them a large amount of money. Frontex, an agency with a billionaire budget, originally demanded € 23,700 from us in legal fees after we had lost our lawsuit for information on the ships Frontex deploys in the Mediterranean.
The intention behind the legal bill was clear: to prevent us - and anyone else - from taking them to court again. Now, the EU General Court has confirmed that Frontex was in no need of recovering such a large amount of money. Instead, the court has established that the justified amount is € 10,520 - less than half of Frontex’s initial bill.
The court’s final decision signals that Frontex’s lawsuit, rather than a financial necessity (the agency has been known to spend up to € 94,000 on a dinner), was an intimidatory gesture towards civil society, intended to produce a chilling effect.
Frontex’s cost claims, criticized by the court
In its decision, the EU court slams Frontex for having claimed disproportionate and unjustified costs as part of their legal bill.
This includes Frontex’s travel expenses, heavily criticised by the court for having been claimed “without, however, providing the slightest explanation as to its purpose or why it was necessary.”
The court also questioned the number of hours Frontex’s privately-hired lawyer claimed to have spent working on the case, which “appears to be more than what may be regarded as necessary”.
Also rejected by the court were a series of travel and accommodation expenses after Frontex had stated before the court that these costs “will not normally be considered as reimbursable fees”, but had then decided to bill them anyway.
A lack of EU rules become grounds for abuse
Intimidations towards activists and civil society are unacceptable and undemocratic - particularly so when they come from a border police force that’s currently undergoing three different investigations for, among other things, human rights violations, harassment and misconduct, and having lied to the European Parliament. Frontex’s attempt to silence its critics through costly lawsuits should sound all sorts of alarms.
Meanwhile, civil society is being left unprotected by an absence of EU rules limiting the amount of recoverable legal costs. This loophole, which can easily become grounds for abuse, must be closed through clear legislation that ensures fair and equal access to EU courts.
What happens next
While Frontex’s message is clearly one of intimidation, we have no intention of backing down. Since the EU border police filed its lawsuit against us, we have continued to investigate Frontex and campaign for the agency to be held accountable. This is the work that we plan to keep on doing, and that you can support by making a donation to FragDenStaat.
As for Frontex, they can expect to see us in court again soon.
Date of acceptance : 26/03/2021
- 14 - ORDER OF THE GENERAL COURT (Fifth Chamber) 26 March 2021 * (Procedure – Taxation of costs) - 994103 - In Case T-31/18 DEP, Luisa Izuzquiza, residing in Madrid (Spain), Arne Semsrott, residing in Berlin (Germany), represented by S. Hilbrans and R. Callsen, lawyers, and by J. Pobjoy, Barrister, applicants, v European Border and Coast Guard Agency (Frontex), represented by H. Caniard, S. Drew and T. Knäbe, acting as Agents, defendant, APPLICATION for taxation of costs further to the judgment of 27 November 2019, Izuzquiza and Semsrott v Frontex (T-31/18, EU:T:2019:815), THE GENERAL COURT (Fifth Chamber), composed of D. Spielmann, President, U. Öberg (Rapporteur) and R. Mastroianni, Judges, Registrar: E. Coulon, makes the following Order * Language of the case: English. EN
ORDER OF 26. 3. 2021 – CASE T-31/18 DEP Facts, procedure and forms of order sought 1 By application lodged at the Court Registry on 20 January 2018 and registered under number T-31/18, the applicants, Luisa Izuzquiza and Arne Semsrott, brought an action seeking annulment of Decision CGO/LAU/18911c/2017 of the European Border and Coast Guard Agency (Frontex) of 10 November 2017, refusing access to documents containing information on the name, flag and type of each vessel deployed by Frontex in the central Mediterranean under Joint Operation Triton between 1 June and 30 August 2017. 2 By judgment of 27 November 2019, the Court dismissed the action as unfounded and, pursuant to Article 134(1) of the Rules of Procedure of the General Court, ordered the applicants to pay the costs, in accordance with the form of order sought by Frontex. 3 By letter of 30 January 2020, Frontex sought payment of its costs from the applicants, assessed at EUR 23 700.81, which it had incurred for legal assistance in the proceedings in the case giving rise to the judgment of 27 November 2019, Izuzquiza and Semsrott v Frontex, T-31/18, EU:T:2019:815 (‘the case in the main proceedings’). It invited the applicants to take the appropriate measures resulting from that judgment by reimbursing the amount within 28 days. 4 Since the applicants did not comply with that request, Frontex, by document lodged at the Court Registry on 3 November 2020, brought an application for taxation of costs, pursuant to Article 170(1) of the Rules of Procedure, in which it claimed that the Court should: – set the amount of recoverable costs in the case in the main proceedings at EUR 19 048.51; – order the applicants to bear their own costs and to pay those incurred by Frontex in the present taxation proceedings. 5 In their observations, lodged at the Court Registry on 7 January 2021, the applicants expressed their views on the application for taxation of costs and contended that the Court should: – set the amount of recoverable costs of Frontex at EUR 6 606.82; – order Frontex to pay the costs of the present taxation proceedings. Law 6 Under Article 170(3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court, on application by the party concerned and after hearing the observations of the opposite party, is to give its decision by way of an order from which no appeal lies. 2
IZUZQUIZA AND SEMSROTT V FRONTEX 7 According to Article 140(b) of the 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. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, secondly, to those which were necessary for that purpose (see, to that effect, order of 13 January 2017, Idromacchine and Others v Commission, T-88/09 DEP, EU:T:2017:5, paragraphs 10 and 11 and the case-law cited). 8 The amount recoverable for the costs in the present case must be assessed by reference to those considerations. Costs incurred for the purposes of the case in the main proceedings 9 As regards the costs relating to the case in the main proceedings, it is apparent from the application that the amount of EUR 19 048.51 relates, first, not only to the lawyer’s fees but also the expenses associated with his having to attend the hearing. Secondly, the costs relate to the missions carried out in Warsaw and Brussels by Frontex’s agent and by Frontex’s technical expert and also to the expenses associated with their having to attend the hearing. The recoverability of the costs incurred by the technical expert 10 It follows from the case-law that the involvement by an expert at the initiative of the parties must be objectively necessary for the purposes of the proceedings in order for the resulting costs to be recoverable. That may be the case, inter alia, where the expert evidence is crucial for the outcome of the case, such that its production by one party has spared the Court the need to commission an expert’s report in the context of its powers pursuant to Article 25 of the Statute of the Court of Justice of the European Union and Article 91 of the Rules of Procedure (order of 13 January 2017, Idromacchine and Others v Commission, T-88/09 DEP, EU:T:2017:5, paragraph 19). 11 According to Frontex, the nature of the case in the main proceedings necessitated the involvement of an external counsel, a technical expert and agents as well as several expert staff within Frontex in making considerable legal and technical assessments. A technical expert was authorised by the Court to assist Frontex in the written part of the legal proceedings. The expertise of those external providers of services, including the technical expert, also needed to be called upon during the oral part of the proceedings. 12 The applicants submitted that the costs claimed for the technical expert are not recoverable. In their view, the technical expert in question is an employee of the Finnish Coast Guard. After the Court invited it to clarify the nature of the technical expert’s involvement in the case, Frontex stated in its reply to the Court’s measure of organisation of procedure that it was well aware ‘that costs for 3
ORDER OF 26. 3. 2021 – CASE T-31/18 DEP experts, the presence of which was not requested by the Court, will not normally be considered as reimbursable fees or costs’. 13 As is clear from the judgment of 27 November 2019, Izuzquiza and Semsrott v Frontex, T-31/18, EU:T:2019:815, the case in the main proceedings involved five pleas in law, of which only the second relates to technical issues. That second plea in law related to ‘whether Frontex provided plausible explanations in the contested decision [in the main proceedings] as to how access to the documents at issue could specifically and actually undermine the protection of the European Union’s public security and whether, in Frontex’s broad discretion in applying the exceptions in Article 4(1) of Regulation [(EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)], the risk of that undermining could be considered reasonably foreseeable and not purely hypothetical’. 14 More specifically, the issue which the Court had to decide in the case in the main proceedings related to ‘the factual accuracy of the assertion made by Frontex in the contested decision that, if the information requested were disclosed, it could be combined with information available on certain maritime websites or tools in order to establish the position of the vessels taking part in Operation Triton’. 15 Thus, the Court’s review in that regard, first, related to Frontex’s assertion in the contested decision rather than highly complicated technical questions as such and, secondly, was carried out in view of Frontex’s broad discretion in that respect. Moreover, that issue was resolved by reference to the factual circumstances which could not be characterised as requiring technical expertise (see judgment of 27 November 2019, Izuzquiza and Semsrott v Frontex, T-31/18, EU:T:2019:815, paragraphs 68 to 71 and 74). 16 In the light of the considerations set out in paragraphs 14 and 15 above, the involvement of the expert was not objectively necessary for the purpose of the proceedings, in the sense that the expert evidence was not crucial for the outcome of the case (see, in that respect, order of 13 January 2017, Idromacchine and Others v Commission, T-88/09 DEP, EU:T:2017:5, paragraph 19). Frontex’s argument that a technical expert was authorised by the Court to assist Frontex in the written part of the legal proceedings is not such as to affect that conclusion. 17 It follows from the foregoing that the technical expert’s costs claimed by Frontex in the present case are not recoverable. The lawyers’ fees 18 As is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that Statute, the EU institutions, and consequently the EU agencies, are free to have recourse to the assistance of a lawyer. The latter’s 4
IZUZQUIZA AND SEMSROTT V FRONTEX remuneration is, therefore, covered by the concept of expenses necessarily incurred for the purpose of the proceedings, without the institution or agency being required to show that such assistance is objectively warranted. Therefore, whilst the fact that Frontex instructed an external agent and an external counsel has no impact on the possible recoverability of those costs, since there is nothing to preclude such recovery in principle, it may have an impact on the determination of the amount of costs incurred for the purposes of the proceedings which may ultimately be recovered (see, to that effect, order of 28 May 2013, Marcuccio v Commission, T-278/07 P-DEP, EU:T:2013:269, paragraph 14). 19 According to the case-law, 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 purpose 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 extent of the work generated by the dispute for the agents or advisers involved and the financial interest that the parties had in the proceedings (order of 28 January 2014, Marcuccio v Commission, T-366/10 P-DEP, not published, EU:T:2014:63, paragraph 36). 20 As regards the assessment of the extent of the work to which the proceedings may have given rise, the primary consideration of the EU judicature is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court (see order of 17 June 2015, Mundipharma v OHIM – AFT Pharmaceuticals (Maxigesic), T-328/12 DEP, not published, EU:T:2015:430, paragraph 33 and the case-law cited). 21 The amount of the costs recoverable by way of lawyers’ fees in the present case must be assessed in the light of those considerations. 22 In the present case, it is apparent from the application that Frontex claims the total amount of EUR 13 800 for the reimbursement of lawyers’ fees in respect of the 85.25 hours of work which its lawyer states that he devoted to tasks relating to the case in the main proceedings, invoiced at an average hourly rate of EUR 161.40 per hour. According to Frontex, the actual value of those billable hours would be EUR 19 607.50, or EUR 230 per hour. However, that amount was reduced by applying a contractual limit of EUR 13 800. 23 Those 85.25 hours of work which Frontex contends that its lawyer dedicated to the case in the main proceedings include 45 hours preparing the defence, 16 hours preparing the rejoinder, 7.75 hours responding to the measures of organisation of procedure and 16.5 hours preparing for and attending the hearing. 24 The applicants, in their observations, state that the lawyers’ fees claimed by Frontex are disproportionate to the difficulty of the legal work for which the lawyer was hired. In their view, the appropriate hours would have been 15 hours to read the application and to write the defence, 6 hours to prepare the rejoinder, 3 hours to respond to the questions raised by way of measures of organisation of 5
ORDER OF 26. 3. 2021 – CASE T-31/18 DEP procedure and 9.95 hours to prepare for and attend the hearing, adding up to 33.95 hours in total, which according to the applicants, would cost EUR 5 914.74 of lawyers’ fees in total. 25 It must be noted that the purpose and nature of the case in the main proceedings did not present any particular complexity. In essence, the case raised a question falling within the context of ordinary litigation regarding the access to documents, namely the scope of the exception relating to the protection of the public interest as regards public security (see, to that effect, order of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T-181/14 DEP, EU:T:2017:41, paragraph 17). 26 As regards the legal significance of the case in the main proceedings, in line with what Frontex has submitted, issues have indeed arisen around reconciling the fundamental right of access to documents, enshrined in Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union, on the one hand, with the obligation to protect the legal interest of public security under Regulation No 1049/2001, on the other, which testify to the fact that the case in the main proceedings had some legal significance. However, those issues were resolved on the basis of settled case-law, without the need for extensive legal research or analysis of new legal issues. Moreover, the case in the main proceedings was the subject of a judgment delivered by a formation of three judges, not published in the General Reports of Cases (see, to that effect, order of 13 December 2013, Marcuccio v Commission, T-402/09 P-DEP, not published, EU:T:2013:683, paragraph 36) 27 As regards the financial interests which the proceedings represented for the parties, it must be noted, as the applicants essentially argue, that cases concerning access to documents, in so far as they form part of the exercise of the right to information such as in the present case, are not per se of financial interest to the parties (see, by analogy, order of 24 October 2013, Internationaler Hilfsfonds v Commission, C-554/11 P-DEP, not published, EU:C:2013:706, paragraph 22). 28 As regards the extent of the work undertaken, it should be noted that, as part of the case in the main proceedings, the facts were not significantly contested. It involved two exchanges of pleadings which were of an ordinary length, and the preparation for a hearing lasting 2 hours and 20 minutes. Furthermore, by way of a measure of organisation of procedure, the Court put a limited number of questions to the parties. 29 It follows that the case in the main proceedings does not appear to have generated a particularly large amount of work for Frontex’s lawyer. 30 More specifically, as regards preparing the defence, the 45 hours put forward do not appear to be objectively necessary for the purpose of the proceedings before the Court, since the proceedings in question are not unusually complex for a case brought before the Court. 6
IZUZQUIZA AND SEMSROTT V FRONTEX 31 Along the same lines, the time spent put forward for preparing the rejoinder, preparing for and attending the hearing and preparing the reply to the Court’s questions appears to be more than what may be regarded as necessary for the purpose of the proceedings before the Court in the case in the main proceedings. 32 Consequently, the Court considers it appropriate to set the total amount of working time of Frontex’s lawyer objectively necessary to represent it during the judicial phase at 40 hours. 33 In view of the foregoing considerations, the costs recoverable in respect of lawyers’ fees can be assessed on an equitable basis at a total of EUR 9 200. The travel expenses 34 The absence of accurate and sufficient information puts the Court in a situation where it has to make a strict assessment of an applicant’s claims (see, to that effect, order of 30 November 2016, Pico Food v EUIPO – Sobieraj (MILANÓWEK CREAM FUDGE), T-623/11 DEP, not published, EU:T:2016:750, paragraph 26 and the case-law cited). 35 Frontex claimed travel expenses in the amounts of EUR 283.90 and EUR 1 036.86 for its lawyer and its agent respectively to attend the hearing and EUR 801.33 for the same agent to go on a ‘Brussels mission’, without, however, providing the slightest explanation as to its purpose or why it was necessary. 36 The applicants contested the validity of the expenses claimed for that Brussels mission. They further maintained that the travel expenses for Frontex’s agent with regard to the hearing could have been reduced to EUR 691.88 given that, according to the applicants, the cost of the flight, which was set at EUR 744.98, could have been reduced to EUR 400 if Frontex had made appropriate arrangements to secure a flight at a reasonable price. 37 The expenses in respect of Frontex’s lawyer travelling to the hearing, for their part, are not contested by the applicants. They appear necessary for Frontex’s participation in the proceedings and their amount is reasonable. It is, therefore, appropriate to grant Frontex’s application on that point and to reimburse to it the amounts claimed in that respect. 38 As regards the expenses claimed for Frontex’s agent, it must be noted that there is no evidence in the file as to the purpose of the alleged Brussels mission or why it was necessary. In those circumstances, the expenses claimed by Frontex in that respect should not be regarded as recoverable. 39 Lastly, as regards the expenses claimed for that agent’s travel to the hearing, it should be noted that his attendance was necessary for the purposes of progression of the case. As the expenses claimed in that respect are fully supported by documents in the file, they should be considered recoverable costs. 7
ORDER OF 26. 3. 2021 – CASE T-31/18 DEP 40 It follows that the total amount recoverable for travel expenses is EUR 1 320.76. 41 In view of the foregoing, the total amount of costs recoverable in the case in the main proceedings is EUR 10 520.76. Costs of the present proceedings 42 As regards the costs of the present proceedings, each party should be ordered to bear its own costs, in so far as the parties have only been partially justified in their pleas and forms of order sought (see, to that effect, orders of 14 July 2015, Ntouvas v ECDC, T-223/12 DEP, not published, EU: T:2015:570, paragraph 37, and of 11 January 2017, Wahlström v Frontex, T-653/13 P-DEP, not published, EU:T:2017:12, paragraphs 38 and 39). On those grounds, THE GENERAL COURT (Fifth Chamber) hereby orders: 1. The total amount of the costs to be reimbursed by Luisa Izuzquiza and Arne Semsrott to the European Border and Coast Guard Agency (Frontex) is set at EUR 10 520.76. 2. Luisa Izuzquiza, Arne Semsrott and the European Border and Coast Guard Agency shall bear their own respective costs. Luxembourg, 26 March 2021. E. Coulon D. Spielmann Registrar President 8
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