ORDER OF THE GENERAL COURT (Single Judge)
11 March 2024 (*)
(Procedure – Taxation of costs)
In Case T‑569/21 DEP,
Zoubier Harbaoui, residing in Paris (France), represented by A. Bove, lawyer,
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
Google LLC, established in Mountain View, California (United States), represented by M. Kinkeldey and C. Schmitt, lawyers,
THE GENERAL COURT (Single Judge),
Judge: G. Steinfatt,
Registrar: V. Di Bucci,
having regard to the judgment of 1 February 2023, Harbaoui v EUIPO – Google (GOOGLE CAR) (T‑569/21, not published, EU:T:2023:38),
makes the following
Order
1 By its application, based on Article 170 of the Rules of Procedure of the General Court, the intervener, Google LLC, requests the Court to fix at EUR 8 312.95 the amount of recoverable costs to be paid by the applicant, Mr Zoubier Harbaoui, in respect of the costs incurred by the intervener in the proceedings in Case T‑569/21.
Background to the dispute
2 By application lodged at the Court Registry on 10 September 2021 and registered as Case T‑569/21, the applicant brought an action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 June 2021 (Case R 904/2020-1).
3 The intervener intervened in the dispute in support of the form of order sought by EUIPO. It contended that the action should be dismissed and that the applicant be ordered to pay the costs.
4 By judgment of 1 February 2023, Harbaoui v EUIPO – Google (GC GOOGLE CAR) (T‑569/21, not published, EU:T:2023:38), the Court dismissed the action and ordered the applicant to pay the costs.
5 By email of 8 February 2023, sent to the applicant’s representative, Ms Bove, the intervener requested reimbursement of the costs incurred in the main proceedings.
6 Ms Bove replied, by email of 18 February 2023, that she had forwarded the intervener’s request to her client. By email of 20 March 2023, she informed the intervener that she had not received any reply from the applicant and that she had decided to no longer represent him.
Forms of order sought
7 The intervener claims that the Court should fix the amount of recoverable costs to be reimbursed by the applicant at EUR 8 312.95 in respect of the main proceedings.
8 The applicant did not lodge any observations within the time allowed.
Law
9 Under Article 170(3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, at the request of the party concerned, to give its decision by way of an order from which no appeal is to lie, after giving the party concerned by the application an opportunity to submit its observations.
Admissibility of the application
10 In accordance with Article 170(1) of the Rules of Procedure, an application for taxation of costs is admissible only if, at the time the application is made, there is a dispute concerning the costs to be recovered (see order of 20 October 2017, LG Developpement v EUIPO – Bayerische Motoren Werke (MINICARGO), T‑160/15 DEP, not published, EU:T:2017:772, paragraph 12 and the case-law cited).
11 However, the admissibility of an application for taxation of costs cannot depend on a lack of response on the part of the party ordered to pay the costs, since otherwise the procedure provided for in Article 170 of the Rules of Procedure would be deprived of all practical effect (order of 28 February 2013, Commission v Marcuccio, C‑432/08 P-DEP, not published, EU:C:2013:108, paragraph 15). If that were so, it would be sufficient for a party to proceedings who has been ordered to pay the costs incurred by the other party to refrain from engaging in any reaction or use delaying tactics in order to make it impossible to lodge an application for taxation of costs pursuant to the abovementioned article. Such a result would render ineffective the procedure provided for in that article, which serves to achieve a definitive ruling on the costs of the proceedings (order of 26 October 2017, Haw Par v EUIPO – Cosmowell (GELENKGOLD), T‑25/16 DEP, not published, EU:T:2017:774, paragraph 11).
12 In the present case, the applicant was given the opportunity to comment on the intervener’s application. On the date on which the application for taxation of costs was submitted, he had neither formally refused the intervener’s request to pay the sum claimed by email of 8 February 2023 nor acted upon that request. It follows that the application for taxation of costs, submitted by the intervener on 21 September 2023, is admissible.
The merits of the application
13 In the first place, as regards the need to give the party concerned by the application an opportunity to submit its observations, in accordance with Article 170(3) of the Rules of Procedure, it follows from the fact that the intervener’s application was served on the last representative of the applicant known to the Court that the applicant was given an opportunity to submit its observations on the application for taxation of costs submitted by the intervener.
14 According to settled case-law, the representatives of a party in a case in the main proceedings remain the point of contact for the Court until that party designates, where appropriate, a new representative (orders of 25 October 2018, Emesa-Trefilería and Industrias Galycas v Commission, T‑406/10 DEP, not published, EU:T:2018:766, paragraph 20, and of 5 September 2019, Pujante Cuadrupani v GSA, T‑612/18 DEP, not published, EU:T:2019:562, paragraph 12).
15 In the second place, according to Article 140(b) of the Rules of Procedure, the expenses necessarily incurred by the parties for the purposes of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers are regarded as recoverable costs.
The lawyers’ fees
16 In support of its application for taxation of costs, the intervener produced a detailed list of lawyers’ fees and expenses, representing a total of EUR 7 916.20.
17 It is settled case-law that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees which may be recovered from the other party. In ruling on the application for taxation of costs, the Court is not required to take into account any national tariff fixing lawyers’ fees or any agreement to that effect between the party concerned and its agents or advisers (see order of 26 January 2017, Nurburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 10 and the case-law cited).
18 In the absence of provisions of EU law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject matter and nature of the dispute, its importance from the point of view of European Union law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved, and the economic interests which the dispute represented for the parties (see order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 11 and the case-law cited).
– The subject matter and nature of the dispute, its importance from the point of view of EU law, the difficulties presented by the case and the economic interests of the dispute for the intervener
19 In the present case, the dispute at issue in the main proceedings was not particularly complex as regards its subject matter and its nature. As is apparent from the judgment of 1 February 2023, GC GOOGLE CAR (T‑569/21, not published, EU:T:2023:38), the applicant had raised only one plea in support of his action, alleging infringement of Article 8(5) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1), and the case did not raise new or complex questions of law.
20 In the absence of specific evidence adduced by the intervener, the economic interest of the case in the main proceedings to the intervener cannot be regarded as unusual, or significantly different from that on which any opposition brought against an application for registration of an EU trade mark is based (see, to that effect, order of 6 June 2019, Damm v EUIPO – Schlossbrauerei Au, Willibald Beck Freiherr von Peccoz (EISKELLER), T‑859/16 DEP, not published, EU:T:2019:402, paragraph 22 and the case-law cited).
– The amount of work necessary and the recoverable costs in respect of the main proceedings
21 As regards the amount of work generated by the proceedings for the intervener’s representatives, it is for the Courts of the European Union to take into consideration the work objectively necessary to the legal proceedings as a whole. 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, to that effect, order of 17 September 2019, Mozzetti v EUIPO – di Lelio (Alfredo alla Scrofa et ALFREDO’S GALLERY alla Scrofa Roma), T‑96/15 DEP and T‑97/15 DEP, not published, EU:T:2019:658, paragraph 34 and the case-law cited).
22 In the present case, the number of hours invoiced for the handling of the case in the main proceedings amounts to 17.5 hours invoiced by the intervener’s representative at an hourly rate of EUR 350 and to 3.1 hours invoiced at an hourly rate of EUR 366, and a lump sum of EUR 1000.
23 As regards the hourly rate, in the absence, as EU law currently stands, of a scale in that regard, it is only where the average hourly rate invoiced appears manifestly excessive that the Court may depart from it and set ex aequo et bono the amount of recoverable fees for lawyers and expert economists (see order of 19 January 2021, Romańska v Frontex, T‑212/18 DEP, not published, EU:T:2021:30, paragraph 39 and the case-law cited). However, the taking into account of a high hourly rate appears appropriate only to remunerate the services of professionals who have performed their duties efficiently and rapidly and must, consequently, be counterbalanced by a necessarily strict assessment of the total number of hours of work necessary for the purposes of the contentious proceedings (see order of 18 May 2022, 12seasons v EUIPO – Société immobilière et mobilière de Montagny (BE EDGY BERLIN), T‑329/19 DEP, not published, EU:T:2022:328, paragraph 21 and the case-law cited).
24 In the present case, the Court considers that neither the hourly rate invoiced in the amount of EUR 350 nor that invoiced in the amount of EUR 366 appears manifestly excessive.
25 In the first place, the intervener seeks reimbursement of an amount of EUR 5 250, calculated on the basis of an hourly rate of EUR 350, for 16 hours of work, and invoiced for examining the action, preparing a response, obtaining the client’s comments, and finalising and lodging the response on 16 December 2021.
26 First, calculated on the basis of an hourly rate of EUR 350, the amount of EUR 5 250 corresponds to 15 hours. The Court proceeds on the basis that the intervener’s representative reproduced, in her application for taxation of costs, the amount actually invoiced to the intervener, with the result that the amount set out in that application must be taken into account, even if that amount does not correspond to the number of hours indicated.
27 Second, it is apparent from the documents in the file that, in the main proceedings, the application consisted of only five pages of argument. The intervener submitted a response of nine pages. Having regard to the high hourly rate invoiced by the intervener’s representative, the time spent examining the action and preparing the response appears excessive.
28 Third, it is apparent from the case-law that coordination with the client cannot be regarded as corresponding to expenses necessarily to be taken into account when calculating the amount of recoverable costs (see order of 18 May 2022, BE EDGY BERLIN, T‑329/19 DEP, not published, EU:T:2022:328, paragraph 34 and the case-law cited). Thus, in the present case, the time spent in obtaining the client’s comments cannot be taken into account.
29 Given that the intervener does not specify the breakdown of working time for the various tasks included in the amount of EUR 5 250, the expenses necessarily incurred in respect of those tasks will be fairly assessed by limiting them to EUR 2 800.
30 In the second place, the intervener claims EUR 350 for one hour of work invoiced for the examination of the defendant’s response to the action and the report to the client carried out between 17 and 22 December 2021.
31 According to the case-law cited in paragraph 28 above, coordination with the client cannot be taken into account, with the result that that claim must be rejected. Furthermore, according to case-law, the recovery of costs relating to periods during which no procedural steps were taken must be ruled out, since they cannot be shown to be directly linked to the representative’s interventions before the Court (see orders of 10 March 2020, PT Pelita Agung Agrindustri v Council, T‑121/14 DEP, not published, EU:T:2020:104, paragraph 35 and the case-law cited, and of 5 May 2023, Laboratorios Ern v EUIPO – NORDESTA (APIAL), T‑315/21 DEP, not published, EU:T:2023:251, paragraph 29 and the case-law cited). It follows that the costs invoiced for the sole purpose of examining EUIPO’s response cannot be reimbursed since they are not directly linked to the intervener’s interventions.
32 In the third place, the intervener claims EUR 175 for half an hour of work, also invoiced at EUR 350 per hour, for the preparation and filing of the request for a hearing on 12 January 2022, which appears appropriate.
33 In the fourth place, the intervener seeks reimbursement of costs in the amount of EUR 297.20 for the examination of the communication received from the Court and the report to the client on 19 January, 8 June and 4 July 2022.
34 However, given that costs invoiced for the sole purpose of examining the communication received from the Court cannot be reimbursed since they are not directly linked to the intervener’s interventions (see paragraph 30 above) and that the costs associated with the report to the client are not part of the recoverable costs either (see paragraph 28 above), those costs must be excluded.
35 In the fifth place, the claim for reimbursement of the sum of EUR 112 for 0.3 hours devoted to the preparation and sending of observations on the assignment of the case to the single judge appears justified.
36 In the sixth place, the intervener claims a fee of EUR 732 for two hours of work at an hourly rate of EUR 366 for the study, in September 2022, of pleadings and decisions and the preparation of oral argument for the hearing, which also appears justified.
37 In the seventh place, the intervener seeks reimbursement of an amount of EUR 1 000 for participation in the hearing on 15 September 2022, including travelling time.
38 However, the invoicing, even partial, of travel time cannot in any event be regarded as falling within the concept of ‘expenses necessarily incurred for the purpose of the proceedings’ within the meaning of Article 140(b) of the Rules of Procedure (orders of 7 October 2021, Campbell v Commission, T‑701/18 DEP, not published, EU:T:2021:670, paragraph 43, and of 19 December 2022, PrenzMarien v EUIPO – Molson Coors Brewing Company (UK) (STONES), T‑766/20 DEP, not published, EU:T:2022:866, paragraph 28).
39 It follows that only the fee corresponding to the working time spent participating in the hearing may be claimed. Since the hearing lasted 45 minutes, lawyers’ fees in the amount of EUR 274.50 may be regarded as having been necessary for the purposes of participating in the hearing.
40 Therefore, the Court considers it appropriate to fix the total amount of recoverable lawyers’ fees at EUR 4 093.50.
Travel and subsistence expenses
41 The intervener claims an amount of EUR 396.75, corresponding to the part of its lawyer’s travel and subsistence expenses for the purposes of the oral hearing in Case T‑569/21. As the hearings in Cases T‑568/21 and T‑569/21 took place, successively, on the same day, the intervener claims, more specifically, half of its lawyer’s travel and subsistence expenses, namely EUR 156.75 for the plane ticket, EUR 50 for taxi fees, EUR 36 for parking fees and EUR 154 for accommodation costs.
42 It is for the person applying for costs to adduce evidence establishing the authenticity and the amount of the travel and subsistence expenses in respect of which he, she or it claims reimbursement (order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 34).
43 In the light of the invoices produced, the Court considers that the travel and subsistence expenses for which the intervener seeks reimbursement must be regarded as recoverable costs, with the exception, however, of the amount of EUR 55 on one of the two taxi invoices which does not specify either the date or route of the journey and which cannot therefore be regarded as having the necessary connection with the hearing. Given that the intervener requested, in its application for taxation of costs, reimbursement of only half of those expenses, given that the hearings in Cases T‑568/21 and T‑569/21 took place on the same day, the amount of EUR 396.75 must be reduced by EUR 27.50, so that an amount of EUR 369.25 must be regarded as recoverable costs.
44 In the light of all of the foregoing, the Court considers that the costs recoverable by the intervener in respect of the proceedings before the Court will be fairly assessed by fixing their amount at EUR 4 462.75, which takes account of all the circumstances of the case up to the date of the present order. In the absence of an application for costs relating to the taxation of costs proceedings, it is not appropriate to increase the amount of recoverable costs by adding to them an amount relating to the taxation of costs proceedings.
On those grounds,
THE GENERAL COURT (Single Judge)
hereby orders:
The total amount of costs to be reimbursed by Mr Zoubier Harbaoui to Google LLC is fixed at EUR 4 462.75.
Luxembourg, 11 March 2024.