ORDER OF THE GENERAL COURT (Sixth Chamber)
11 April 2024 (*)
(Article 164 of the Rules of Procedure of the General Court – Rectification of judgment – Costs)
In Case T‑511/22 OST,
Olimp Laboratories sp. z o.o., established in Dębica (Poland), represented by M. Kondrat, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Sonja Schmitzer, residing in Teltow (Germany), represented by D. Breuer, lawyer,
THE GENERAL COURT (Sixth Chamber),
composed of M. J. Costeira (Rapporteur), President, P. Zilgalvis and E. Tichy‑Fisslberger, Judges,
Registrar: V. Di Bucci,
makes the following
Order
1 The Court delivered the judgment of 25 October 2023, Olimp Laboratories v EUIPO – Schmitzer (HPU AND YOU) (T‑511/22, not published, EU:T:2023:673; ‘the judgment at issue’).
2 By document lodged at the Court Registry on 3 November 2023, the intervener, Ms Sonja Schmitzer, has asked the Court, in essence, pursuant to Article 165 of the Rules of Procedure of the General Court, to remedy a failure to adjudicate in so far as the General Court failed to order the applicant to pay the costs incurred by the intervener, even though she had applied for costs.
3 That request by the intervener must be interpreted as an application for rectification of the judgment at issue as regards the payment of the costs and not as an application to remedy a failure to adjudicate on the costs, since the Court ruled on the costs in that judgment, by ordering the applicant, in point 2 of the operative part, to pay the costs, and the intervener, in point 3 of the operative part, to bear her own costs.
4 In accordance with Article 164(1) and (2) of the Rules of Procedure, the General Court may, of its own motion or on application by a party made within two weeks after the delivery of the judgment, rectify clerical mistakes, errors in calculation and obvious inaccuracies.
5 In the present case, the Court finds that the judgment at issue contains an obvious inaccuracy as regards the payment of the costs, since the Court failed to take account of the intervener’s head of claim set out in her letter of 25 April 2023, asking the Court to order the applicant to pay the costs, including those incurred by the intervener.
6 As is apparent from settled case-law, it is open to the parties to apply for costs subsequently, even at the hearing, although they did not do so when the pleadings were lodged (see, to that effect, judgment of 13 May 2015, Group Nivelles v EUIPO – Easy Sanitairy Solutions (Shower drainage channel), T‑15/13, EU:T:2015:281, paragraph 142 and the case-law cited).
7 Furthermore, that case-law is also applicable where, as in the present case, the head of claim regarding costs is set out in a letter sent before the Court has given judgment (see order of 12 July 2005, Schäfer v OHIM – KoKa (Mike’s MEALS ON WHEELS), T‑163/04, not published, EU:T:2005:282, paragraph 64).
8 It is therefore necessary to rectify the obvious inaccuracy as regards the payment of the costs by amending the judgment at issue as set out in the operative part of the present order.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. Paragraph 100 of the judgment of 25 October 2023, Olimp Laboratories v EUIPO – Schmitzer (HPU AND YOU) (T‑511/22, not published, EU:T:2023:673), shall read:
‘As a hearing took place and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and by the intervener.’
instead of:
‘As a hearing took place and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.’
2. Paragraph 101 of the judgment of 25 October 2023, Olimp Laboratories v EUIPO – Schmitzer (HPU AND YOU) (T‑511/22, not published, EU:T:2023:673), shall be deleted.
3. Point 3 of the operative part of the judgment of 25 October 2023, Olimp Laboratories v EUIPO – Schmitzer (HPU AND YOU) (T‑511/22, not published, EU:T:2023:673), shall be deleted.
Luxembourg, 11 April 2024.
V. Di Bucci | | M. J. Costeira |