ORDER OF THE GENERAL COURT (Fifth Chamber)
27 May 2013(*)
(Procedure – Taxation of costs)
In Case T‑501/08 DEP,
NEC Display Solutions Europe GmbH, established in Munich (Germany), represented by C. Eckhartt, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by W. Verburg, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
C More Entertainment AB, established in Stockholm (Sweden), represented by R. Almaraz Palmero, lawyer,
APPLICATION for taxation of the costs to be paid following the judgment of the General Court (Fifth Chamber) of 23 September 2011 in Case T‑501/08 NEC Display Solutions Europe v OHIM – C More Entertainment (see more), not published in the ECR.
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 18 November 2008, the applicant, NEC Display Solutions Europe GmbH, brought an action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 28 August 2008 (Case R 1388/2007-4), concerning opposition proceedings between C More Entertainment AB and itself.
2 The intervener, C More Entertainment AB, 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 the applicant to pay the costs.
3 By judgment of 23 September 2011 in Case T‑501/08 NEC Display Solutions Europe v OHIM – C More Entertainment (see more), not published in the ECR, (‘the judgment in the main proceedings’), the General Court dismissed the action and ordered the applicant to pay the costs pursuant to Article 87(2) of its Rules of Procedure.
4 Following that judgment, the intervener requested the applicant to reimburse it in respect of costs in the amount of EUR 8 150, which the latter refused to do.
5 By document lodged at the Court Registry on 26 June 2012, the intervener filed, pursuant to Article 87(2) of the Rules of Procedure of the Court, an application for taxation of costs in which it invited the latter to fix the amount of recoverable costs at EUR 8 150. The intervener noted that the Court had indeed omitted to mention its own costs whereas it had requested an order for the applicant to pay the costs. However, the intervener took the view that the order as to costs, made against the applicant in the operative part of the judgment in the main proceedings, included the costs incurred by the intervener.
6 The amount claimed by the intervener, that is to say EUR 8 150, corresponded to the sum of the costs, which it assessed at EUR 650 with regard to the opposition proceedings before OHIM, EUR 550 with regard to the proceedings before the Board of Appeal of OHIM, EUR 4 300 and EUR 2 500 with regard to the proceedings before the General Court and EUR 150 with regard to various costs of photocopying, obtaining certificates and translation.
7 By document lodged at the Registry of the Court on 20 August 2012, the applicant submitted its observations on the application for taxation of costs. It argues, in essence, that it follows from paragraph 61 of the judgment in the main proceedings that the Court did not explicitly order it to pay the costs of the intervener and that, in those circumstances, it does not have to pay them.
Law
8 At the outset, it should be noted that the intervener cannot base its action on Article 87(2) of the Rules of Procedure, as that provision merely regulates the apportioning of costs. However, it is settled case-law that an error made in designating the relevant provision cannot lead to the inadmissibility of the submission put forward, where the purpose and the summary of the complaint appear sufficiently clearly from the application. It follows that an applicant also is not obliged expressly to state on which particular rule of law his complaint is based, provided that his line of argument is sufficiently clear for the opposing party and the Courts of the European Union to be able to identify the rule without difficulty (see judgment of 13 November 2008 in Case T‑128/05 SPM v Council and Commission, not published in the ECR, paragraph 65, and the case-law cited).
9 In the present case, it is clear from the intervener’s arguments set out in the document lodged at the Registry on 26 June 2012 that it requests the Court to fix the amount of the recoverable costs, namely, in other words, to apply Article 92(1) of its Rules of Procedure.
10 In the light of the above, it is necessary to examine the present application on the basis of that provision, under which, ‘[i]f there is a dispute concerning the costs to be recovered, the General Court hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie.’
11 In that regard, it is apparent from the response of the intervener in the main proceedings and from paragraph 9 of the judgment in the main proceedings that, by its second head of claim, the intervener sought an order as to costs against the applicant. It follows from paragraph 61 and from the operative part of the judgment in the main proceedings that the Court ordered the applicant to pay the costs. In those circumstances, it is appropriate to interpret paragraph 61 as meaning that the Court ordered the applicant to pay the costs of all the parties that applied for the action to be dismissed, thus including those of the intervener. Accordingly, the intervener is entitled to claim reimbursement of its recoverable costs.
12 According to 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 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 General Court and, secondly, to those which were necessary for that purpose (orders of the General Court in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13, and of 2 March 2012 in Case T‑270/09 DEP PVS v OHIM – MeDiTA Medizinische Kurierdienst (medidata), not published in the ECR, paragraph 7).
13 It is settled case-law that the Courts of the European Union is not empowered to tax the fees payable by the parties to their own lawyers but they 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 General 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 of 19 March 2009 in Joined Cases T‑333/04 and T‑334/04 DEP House of Donuts v OHIM – Panrico (House of donuts), not published in the ECR, paragraph 8, and medidata, paragraph 12 above, paragraph 9).
14 It is also settled case-law that, in the absence of Community provisions laying down fee scales, the General 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 European Union 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 which the parties had in the proceedings (see, to that effect, orders in Airtours v Commission, paragraph 12 above, paragraph 18, and medidata, paragraph 12 above, paragraph 10).
15 It is in the light of those considerations that the Court must assess the amount of the recoverable costs in the present case.
16 This Court notes, first, that the case in the main proceedings presented no particular complexity as regards its purpose and nature. The case concerned opposition proceedings in ordinary trade mark litigation. It should also be noted that the case was of no particular importance in relation to European Union law.
17 Secondly, the Court finds that, whilst the case was admittedly of financial interest to the intervener, without concrete evidence adduced by the latter, that financial interest cannot be regarded as being unusual or significantly different from that which underlies any opposition proceedings against an application for a Community trade mark.
18 Thirdly, as regards the workload which the proceedings generated for the intervener’s counsel, it should be noted that it is for the Courts of the European Union to take into account the amount of work objectively required for the whole of the judicial proceedings. Moreover, it is important to emphasise that the possibility for the Courts of the European Union to assess the value of the work carried out depends on the degree of precision of the information supplied (order of 23 October 2012 in Case T‑323/10 DEP II Chabou v OHIM – Chalou (CHABOU), not published in the ECR, paragraph 16).
19 In the present case, the intervener only produced, as an annex to its application for taxation of costs, an invoice indicating the main costs that it incurred.
20 With regard, first, to the costs of the proceedings before the Opposition Division and the Board of Appeal claimed by the intervener, assessed in the total amount of EUR 1 200, it should be noted that the first subparagraph of Article 136(2) of the Rules of Procedure provides for the reimbursement of costs incurred for the purposes of the proceedings before the Board of Appeal only. In the present case, those costs must be reimbursed on the basis of the decision relating to the costs of the latter proceedings, a decision that has remained valid after the dismissal of the applicant’s action (see order of 6 March 2013 in Case T‑332/10 DEP Polsko‑Amerykański dom inwestycyjn v OHIM – Pfizer (VIAGUARA), not published in the ECR, paragraph 61 and the case-law cited).
21 It follows that there is no need to rule on the costs incurred before OHIM, since they were fixed in the decision of the Board of Appeal, which is enforceable and which the intervener can therefore enforce against the applicant (see order in VIAGUARA, paragraph 20 above, paragraph 62 and the case-law cited).
22 As regards, next, the amount of the lawyer’s fees claimed by the intervener, assessed at EUR 4 300 and EUR 2 500, it is clear that the invoice attached to the intervener’s present application contains no information relating to the services provided and their amount, the hourly rate applied or any evidential documents or fee notes to enable the Court to determine whether they are justified.
23 In that regard, it should be noted that the fixed assessment of the fees, without stating the working time for each item referred to or the hourly rate applied, does not make it possible usefully to assess the amount of work actually carried out. The lack of more detailed information on hourly rates and the time spent on each item makes it especially difficult to verify precisely the costs incurred for the purpose of the proceedings before the General Court and those which are necessary for that purpose, and requires the Court to apply a strict test when assessing the fees recoverable in the present case (orders of 17 June 2011 in Case T‑234/06 DEP Torresan v OHIM – Klosterbrauerei Weissenohe (CANNABIS), not published in the ECR, paragraph 16, and of 5 September 2012 in Case T‑581/08 DEP Perusahaan Otomobil Nasional v OHIM – Proton Motor Fuel Cell (PM PROTON MOTOR), not published in the ECR).
24 Similarly, it should be noted that the actual participation of the intervener in the proceedings before the General Court was limited to the production of a reply of ten pages accompanied by 3 annexes, amounting to a total of four pages, and the exchange of correspondence with the Court. Moreover, there was no hearing in the present case.
25 In the light of the above and the fact that the intervener was represented by the same lawyer during the entire proceedings before the Court, it must be held that the first part of the amount it claims in lawyer’s fees, namely EUR 4 300, is excessive. Furthermore, the second part of the amount claimed in lawyer’s fees, namely EUR 2 500, does not seem justified. In those circumstances, the lawyer’s fees recoverable by the intervener can be assessed on an equitable basis at EUR 3 400.
26 Finally, as regards the various costs of photocopying, obtaining certificates and translation claimed by the intervener, the Court considers these to be reasonable and justified, despite the fact that no breakdown has been produced before it.
27 It follows from all the foregoing considerations that all the costs recoverable by the intervener with regard to the proceedings before the General Court will be fairly assessed by taxing their amount at EUR 3 550, which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
The total amount of costs to be reimbursed by NEC Display Solutions Europe GmbH to C More Entertainment AB is fixed at EUR 3 550.
Luxembourg, 27 May 2013.
E. Coulon
| S. Papasavvas
Registrar | President |