ORDER OF THE GENERAL COURT (Ninth Chamber)
16 January 2018 (*)
(Procedure — Taxation of costs)
In Case T‑169/13 DEP,
Benelli Q.J. Srl, established in Pesaro (Italy), represented by P. Lukácsi and B. Bozóki, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO),
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Demharter GmbH, established in Dillingen (Germany), represented by A. Kohn, lawyer,
APPLICATION for taxation of the costs to be reimbursed by the applicant to the intervener following the judgment of 2 February 2016, Benelli Q. J. v OHIM — Demharter (MOTO B) (T‑169/13, not published, EU:T:2016:56),
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise (Rapporteur) and R. da Silva Passos, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 21 March 2013, the applicant, Benelli Q.J. Srl, brought an action seeking annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 16 January 2013 (Case R 95/2012-2), relating to opposition proceedings between the intervener, Demharter GmbH, and the applicant.
2 On 17 June 2013, the intervener lodged a response in support of EUIPO, claiming, inter alia, that the action should be dismissed and that the applicant should be ordered to pay the costs.
3 On 7 July 2015, the parties presented oral argument at a hearing.
4 By judgment of 2 February 2016, Benelli Q. J. v OHIM — Demharter (MOTO B), (T‑169/13, not published, EU:T:2016:56), the Court dismissed the action, and, on the basis of Article 134(1) of the Rules of Procedure, ordered the applicant to pay the costs incurred by EUIPO and the intervener.
5 By email of 11 April 2017, sent to the applicant’s lawyers, the intervener requested the applicant to pay to it the amount of its costs assessed at EUR 17 665.
6 In the absence of any response from the applicant, the intervener, by application lodged at the Court Registry on 2 August 2017, brought an application under Article 170(1) of the Rules of Procedure for taxation of costs by which it requests the Court to set the amount of the recoverable costs payable by the applicant at EUR 12 025. It specifies that that sum corresponds to the costs relating to representation before the Court in the main proceedings and to the costs incurred for the purposes of the present taxation of costs proceedings.
7 The applicant did not submit observations on that request within the prescribed period.
Law
8 In accordance with Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, at the request of the interested party, the Court is to give its decision by way of an order from which no appeal may lie, after giving the party concerned by the application an opportunity to submit his observations.
9 According to Article 140(b) of the Rules of Procedure, the expenses necessarily incurred by the parties for the purposes of proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are 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, second, to those which were necessary for that purpose (see order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 9 and the case-law cited).
10 It should furthermore be recalled that, according to settled case-law, the Courts of the European Union are not empowered to tax the fees payable by parties to their own lawyers, but may determine the amount of those emoluments to be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (see order of 27 January 2016, ANKO v Commission and REA, T‑165/14 DEP, not published, EU:T:2016:108, paragraph 19 and the case-law cited).
11 It is also settled case-law that, 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, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest that the parties had in the proceedings (see order of 27 January 2016, ANKO v Commission and REA, T‑165/14 DEP, not published, EU:T:2016:108, paragraph 20 and the case-law cited).
12 Furthermore, in setting the recoverable costs, the Court takes 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 (see order of 15 June 2015, Indesit Company v OHIM — ILVE (quadrio), T‑214/12 DEP, not published, EU:T:2015:422, paragraph 15 and the case-law cited).
13 The amount of the recoverable costs in the present case is to be assessed in accordance with those criteria.
14 In this case, the intervener asks the Court to set the total amount of recoverable costs at EUR 12 025. That amount is composed, first, of the sum of EUR 11 125, relating to the costs incurred in relation to representation before the Court in the main proceedings, calculated by applying an hourly rate of EUR 300, excluding VAT, for 37 hours of work, and, secondly, of the sum of EUR 900, relating to the costs incurred in relation to the taxation of costs proceedings calculated by applying that same hourly rate of EUR 300, excluding VAT, for three hours of work.
15 The intervener has submitted, as an annex to the application, a breakdown of the services invoiced during the main proceedings. That document shows that, on 5 April 2013, the intervener’s lawyer claimed the amount of EUR 900, excluding VAT, corresponding to three hours of work, for the analysis of the documents in the case file, the drafting of the annexes and correspondence with the intervener. On 23 May 2013, the amount claimed was EUR 840, excluding VAT, corresponding to almost three hours of work, for the analysis of the case file and for a request for the production of documents. On 7 June 2013, the amount claimed was EUR 1 815, excluding VAT, corresponding to approximately six hours of work, for the preparation of the response to the application. On 27 May 2015, the amount claimed was EUR 1 065, excluding VAT, corresponding to approximately four hours of work, for the analysis of the case file in preparation for the hearing and for case-law research. On 17 June 2015, the amount claimed was EUR 315, excluding VAT, corresponding to approximately one hour of work, for the analysis of the documents in the case file. On 29 June 2015, the amount claimed was EUR 825, excluding VAT, corresponding to almost three hours of work, for preparing oral argument. On 6 July 2015, the amounts claimed were EUR 1 500 and EUR 150, excluding VAT, corresponding to five hours of work and one night’s stay in Luxembourg respectively, for travel costs in order to attend the hearing and for subsistence expenses. On 7 July 2015, the amounts claimed were EUR 750 and EUR 1 500, excluding VAT, corresponding to approximately three and five hours of work respectively, the first amount for attending the hearing and the second for the return journey to Germany. On 8 July 2015, the amount claimed was EUR 315, excluding VAT, corresponding to approximately one hour of work, for the preparation of a report on the hearing. On 2 February 2016, the amount claimed was EUR 1 050, excluding VAT, corresponding to almost four hours of work, for information on the date of delivery, for the examination of the Court’s judgment and for the report on that judgment for the intervener. On 18 May 2016, the amount claimed was EUR 200, excluding VAT, corresponding to approximately 40 minutes of work, for the application for enforcement of the judgment delivered in the main proceedings. The total of the amounts set out above is EUR 11 225, excluding VAT.
16 In the first place, it must be noted that, contrary to the intervener’s claim, the case in the main proceedings had no unusual significance for EU law and did not raise any new legal issues. Moreover, that case was not particularly complex as regards its subject matter and nature.
17 In the second place, it should be noted that, although the intervener had a certain financial interest in the case in the main proceedings, that interest cannot be regarded as being unusually significant in comparison with other similar cases, or substantially different to the interest which underlies any proceedings of the same nature (see, to that effect, order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 18 and the case-law cited).
18 In the third place, as regards the amount of work that the proceedings may have generated for the intervener, it must be recalled that the primary consideration for the Court is the total number of hours of work which may appear to be objectively necessary for the purposes of the proceedings before the Court. In this respect, the ability of the Courts of the European Union to assess the value of work carried out is dependent on the accuracy of the information provided (see order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 19 and the case-law cited).
19 In the present case, it must be noted that the written part of the procedure in the case in the main proceedings consisted of a single round of pleadings and that a hearing took place on 7 July 2015. The participation of the intervener’s lawyer in the proceedings before the Court was therefore confined to the drafting of a response (five pages) in support of the form of order sought by the defendant and of a letter relating to the choice of the language of the case (one page), and to that lawyer’s attendance at the hearing.
20 As regards representation fees pertaining to the taxation of costs proceedings, the participation by the intervener’s lawyer was limited to the lodging of an application (approximately two pages) and of two annexes (1.5 pages) corresponding, for the first annex, to a letter of 11 April 2017 addressed to the applicant requesting reimbursement of the costs (one page) and, for the second annex, to a document (one page) which sets out the amounts charged for the services provided by the intervener’s lawyer for the purpose of its representation in the context of the main proceedings (see paragraph 14 above).
21 Furthermore, it must be noted that the lawyer representing the intervener before the Court did not have prior knowledge of the case on the ground that he had not represented the intervener during the administrative procedure. That factor is likely to have made, in part, the work of that representative more difficult and to have increased the time spent preparing the intervener’s response. It follows from the case-law that the work carried out in the proceedings before the Board of Appeal reduces the scope of the work to be carried out before the Court, and consequently the amounts which may be recovered in this respect (see order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 19 and the case-law cited).
22 The Court notes that, even though the fees incurred by the intervener are itemised (see paragraph 15 above), they are not accompanied by any supporting documents. The only document submitted by the intervener in order to justify its application for taxation of costs, the content of which is recalled in paragraph 15 above, is an informal summary of the services ostensibly provided by its representative and the corresponding fees, calculated according to the number of hours of work carried out by that representative. That document is not accompanied by an invoice dated and signed by that representative, or by any documentary evidence relating to the subsistence expenses incurred in Luxembourg, referred to in that document.
23 The absence of accurate and sufficient information thus places the Court in a situation in which it has to make a strict assessment of the intervener’s claims (see, to that effect, orders of 27 April 2009, Mülhens v OHIM — Conceria Toska (TOSKA), T‑263/03 DEP, not published, EU:T:2009:118, paragraph 18, and of 24 October 2011, Marcuccio v Commission, T‑176/04 DEP II, not published, EU:T:2011:616, paragraph 27 and the case-law cited).
24 In light of all the foregoing considerations, the total costs recoverable by the intervener, including those relating to the present proceedings, may be assessed on an equitable basis at a total amount of EUR 6 500.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
The total amount of costs to be reimbursed by Benelli Q.J. Srl is set at EUR 6 500.
Luxembourg, 16 January 2018.