ORDER OF THE GENERAL COURT (Eighth Chamber)
22 March 2010(*)
(Taxation of costs)
In Case T‑93/06 DEP,
Mülhens GmbH & Co. KG, established in Cologne (Germany), represented by T. Schulte-Beckhausen, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Spa Monopole, compagnie fermière de Spa SA/NV, established in Spa (Belgium), represented by L. de Brouwer, É. Cornu and D. Moreau, lawyers,
APPLICATION for taxation of the costs, brought by Spa Monopole, compagnie fermière de Spa SA/NV, following the judgment of the Court of First Instance of 19 June 2008 in Case T‑93/06 Mülhens v OHIM – Spa Monopole (MINERAL SPA), not published in the ECR,
THE GENERAL COURT (Eighth Chamber),
composed of M.E. Martins Ribeiro, President, N. Wahl (Rapporteur) and A. Dittrich, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 23 March 2006, Mülhens GmbH & Co. KG (‘Mülhens’) brought an action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade marks and Designs) (OHIM) of 11 January 2006 in Case R 825/2004‑2 relating to opposition proceedings between Spa Monopole, compagnie fermière de Spa SA/NV (‘Spa Monopole’) and Mülhens.
2 Spa Monopole intervened in the proceedings in support of the form of order sought by OHIM. It contended that the Court should dismiss the action and order Mülhens to pay the costs.
3 By judgment of 19 June 2008 in Case T‑93/06 Mülhens v OHIM – Spa Monopole (MINERAL SPA), not published in the ECR, the Court dismissed the action and ordered Mülhens to pay the costs, on the basis of Article 87(2) of the Court’s Rules of Procedure.
4 By letter of 2 February 2009, Spa Monopole – the intervener – asked Mülhens to pay its costs, which were estimated at EUR 19 185.45. Spa Monopole stated that that sum reflected lawyers’ fees (EUR 17 980) as well as various administrative costs, costs relating to the photocopying and despatching of documents, and travel expenses for its lawyers for the purposes of attending the hearing (EUR 1 205.45). A table setting out the details of its other miscellaneous costs was appended to that letter.
5 By letter of 19 March 2009, Mülhens replied that the costs requested by the intervener were not identifiable.
6 By letter of 15 July 2009, Spa Monopole produced (i) a table setting out the various costs incurred in the procedure before the Court and (ii) a list of the services provided by its lawyers from 12 April 2006 (the date on which notice was served of the action brought in Case T‑93/06) until 4 July 2008 (the date on which Spa Monopole was notified of the judgment in MINERAL SPA). According to Spa Monopole, the recoverable costs amounted in total to EUR 19 150.45.
7 On 24 August 2009, Mülhens informed Spa Monopole that it refused to pay the costs applied for because, in its view, the number of hours purportedly spent on the proceedings by Spa Monopole’s lawyers was too high.
8 By application lodged at the Court Registry on 27 October 2009, Spa Monopole lodged an application for taxation of costs, pursuant to Article 92(1) of the Rules of Procedure, asking the Court to set the recoverable costs to be paid by Mülhens at EUR 19 150, corresponding to lawyers’ fees (EUR 17 945) and other costs (EUR 1 205).
9 By document of 9 December 2009, Mülhens submitted its observations on that application. Essentially, it submitted that the costs claimed by Spa Monopole appeared to it to be excessive and proposed that the amount of recoverable costs be set, as regards the lawyers’ fees, at EUR 9 000 and, as regards the other costs, at an appropriate sum to be determined by the Court.
Law
10 Under Article 91(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 purposes of the proceedings before the Court and, secondly, to those which were necessary for those purposes (order of 28 June 2004 in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13, and order of 7 January 2008 in Case T‑206/04 DEP Rodrigues Carvalhais v OHIM – Profilpas (PERFIX), not published in the ECR, paragraph 7).
11 In that connection, costs relating to a period subsequent to the oral procedure are not directly connected with intervention before the Court and, as a consequence, cannot be regarded as expenses necessary for the purposes of the proceedings within the meaning of Article 91 of the Rules of Procedure (see order of 9 November 2009 in Case T‑325/06 DEP Boston Scientific v OHIM – Terumo (CAPIO), not published in the ECR, paragraph 9 and the case-law cited).
12 As regards costs relating to proceedings before the Court, it should be borne in mind that the Community Courts are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees 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 (orders in Airtours v Commission, paragraph 17, and PERFIX, paragraph 8).
13 It has also consistently been held that, in the absence of Community provisions 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 Community law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (orders in Airtours v Commission, paragraph 18, and PERFIX, paragraph 9).
14 The amount of recoverable costs in the present case must be determined on the basis of those factors.
15 First, the Court notes that the main proceedings do not concern a case which presents, with respect to its purpose and nature, any particular complexity. That case concerned an opposition by Spa Monopole against the registration of the Community trade mark applied for by Mühlens, the main plea relied on in support of the opposition being the risk that the use without cause of the mark applied for would take unfair advantage of the distinctive character or the repute of the earlier mark, as envisaged in Article 8(5) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (now, Article 8(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). In that connection, the judgment in MINERAL SPA shows that the case, which did not concern either a new legal issue or complex facts and which did not require a complex analysis, cannot be regarded as particularly difficult. Lastly, it must be held that the case is not of any particular importance for Community law.
16 Secondly, it should be observed that, although admittedly the case has an economic interest for Spa Monopole, in the complete absence of any specific evidence adduced by the latter, that interest cannot be regarded as unusual or significantly different from that on which any opposition brought against an application for registration of a Community trade mark is based.
17 Thirdly, as regards the volume of work that the proceedings generated for Spa Monopole’s lawyers, it is for the Community Court to take account of the work objectively necessary for all of the judicial proceedings. Furthermore, it should be borne in mind that the ability of the Community Courts to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Airtours v Commission, paragraph 30 and the case-law cited).
18 In the present case, it must be stated that Spa Monopole has produced, in support of its application for taxation of costs, a detailed breakdown of the costs and fees for which it requests payment.
19 First of all, as regards the lawyers’ fees, Spa Monopole produced a list of services provided by its lawyers between 12 April 2006 and 4 July 2008. The number of hours spent on those services exceeds 96 and the fees charged in that regard amount in total to EUR 17 945.44.
20 In accordance with the case-law set out in paragraph 11 above, it is appropriate to exclude from the recoverable costs fees in the amount of EUR 1 335.84 relating to action taken in the period subsequent to the oral procedure, that is to say, all the services – to which Spa Monopole’s lawyers devoted almost six hours – carried out between 5 December 2007, after the hearing, and 4 July 2008.
21 As regards the other services provided, although it was permissible in the present case for Spa Monopole to entrust its intervention to several lawyers at the same time, the principal factor which the Court must take into account is the total number of hours of work which may appear to be objectively necessary for the purposes of the proceedings before it, irrespective of the number of lawyers who provided the services in question (see order of 12 December 2008 in Case T‑417/05 DEP Endesa v Commission, not published in the ECR, paragraph 44 and the case-law cited).
22 Furthermore, it is necessary to consider the hourly rate which Spa Monopole seeks to have applied, since remuneration at a high hourly rate is appropriate only for the services of professionals who are capable of working efficiently and rapidly, the quid pro quo being that, in such a case, an assessment must be made – which must be rigorous – of the total number of hours of work necessary for the purposes of the proceedings concerned (see, to that effect, order of 17 October 2008 in Case T‑33/01 DEP Infront WM v Commission, not published in the ECR, paragraph 31 and the case-law cited).
23 As it is, the Court finds in the present case that, even though the hourly rates requested by Spa Monopole (between EUR 180 and EUR 260) is reasonable, the total number of hours worked by Spa Monopole’s lawyers for the purposes of the proceedings before the Court appears excessive, in view of the considerations set out in paragraphs 15 to 17 above.
24 In the circumstances of the case, it is fair to set the lawyers’ fees recoverable at EUR 10 000.
25 As regards the other costs for which Spa Monopole claims payment, amounting in total to EUR 1 205.45, it must be held that, even though it cannot be denied that the costs relating to the photocopying and despatching of documents, as well as lawyers’ travel expenses for the purposes of attending the hearing, must be regarded as recoverable costs within the meaning of Article 91 of the Rules of Procedure, that is not the case with respect to administrative costs which, as Mühlens stated, are in general covered by the lawyers’ fees. Those costs, in the amount of EUR 620, must be deducted from the total amount of costs for which Spa Monopole claims compensation, which brings the amount of recoverable costs under that head to EUR 585.45.
26 In the light of all the above considerations, the Court considers that the sum of EUR 10 585.45 represents a fair assessment of all the costs recoverable by Spa Monopole and that that amount takes account of all the circumstances of the case up to the date of the present order.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby orders:
The total amount of the costs to be paid by Mülhens GmbH & Co. KG by way of reimbursement to Spa Monopole, compagnie fermière de Spa SA/NV is fixed at EUR 10 585.45.
Luxembourg, 22 March 2010.
E. Coulon | | M.E. Martins Ribeiro |