ORDER OF THE GENERAL COURT (First Chamber)
30 November 2016 (*)
(Procedure — Taxation of costs)
In Case T‑623/11 DEP,
Pico Food GmbH, established in Tamm (Germany), represented by M. Douglas, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by M. Vuijst, and P. Geroulakos, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Bogumił Sobieraj, residing in Milanówek (Poland), represented by O. Bischof, lawyer,
APPLICATION for taxation of costs further to the Court’s judgment of 9 April 2014, Pico Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE) (T‑623/11, EU:T:2014:199),
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 30 November 2011, the applicant, Pico Food GmbH, brought an action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 September 2011 (Case R 553/2010-1), relating to opposition proceedings between Pico Food GmbH and Bogumił Sobieraj.
2 On 30 March 2012, the intervener, Bogumił Sobieraj, lodged a response in support of EUIPO, claiming that the action should be dismissed and that the applicant should be ordered to pay the costs.
3 By judgment of 9 April 2014, Pico Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE) (T‑623/11, EU:T:2014:199), the Court dismissed the action and, on the basis of Article 87(2) of the Rules of Procedure of the General Court of 2 May 1991, ordered the applicant to pay the costs.
4 Since the parties were unable to reach an amicable settlement on the amount of recoverable costs, the intervener, by document lodged at the Court Registry on 7 April 2016, made this application for taxation of costs.
5 On 2 May 2016, the intervener, pursuant to Article 66 of the Rules of Procedure of the General Court, applied for certain information contained in his application for taxation of costs to be omitted from documents relating to this case which could be made accessible to the public.
6 On 30 May 2016, the applicant lodged with the Court Registry its observations on the intervener’s application for taxation of costs.
7 The intervener claims that the Court should:
– set the amount of recoverable costs in Case T‑623/11 at EUR 5 749, including the costs of the present taxation proceedings,
– charge interest on that amount at a rate of 9% above base rate from receipt by the Court of the application for taxation of costs.
8 The applicant contends that the Court should dismiss the intervener’s application for taxation of costs.
Law
The application for omission of information
9 With regard to the omission of information, the Court notes that, according to Article 66 of the Rules of Procedure, the requesting party must make a reasoned application to that effect.
10 In the present case, the intervener did not provide any statement of grounds for any of the points mentioned in the application; he simply pleaded that there were legitimate reasons without indicating what kind of reasons they were or the nature thereof.
11 The application for omission of information concerns, respectively:
– a paragraph in the application, which mentions alleged exchanges between the parties’ representatives concerning the reimbursement of costs;
– several other paragraphs listing, without describing them, the legal services which, according to the intervener, were supplied by his representative in the main proceedings and should be taken into account when the amount of recoverable costs is determined.
12 This information is not such as to enable the Court, of itself, to discern the reasons that could warrant an application for omission.
13 Accordingly, the Court dismisses the intervener’s application for omission of information contained in documents relating to the case which could be made accessible to the public.
The application for taxation of costs
14 In accordance with Article 170(3) of the Rules of Procedure of the General Court, 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 shall lie, after giving the party concerned by the application an opportunity to submit his observations.
15 Under Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings are regarded as recoverable costs, in particular travel and subsistence expenses and the remuneration of agents, advisers or lawyers.
16 As set out in the case-law, 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 are necessary for that purpose (see, to that effect, order of 25 March 2014, Marcuccio v Commission, T‑126/11 P-DEP, not published, EU:T:2014:171, paragraph 25 and the case-law cited).
17 In the present case, the intervener claims that the Court should set the total amount of recoverable costs at EUR 5 749.
18 That amount covers the legal fees which, the intervener claims, were incurred for drafting a response in the main proceedings; for advice, reports, emails, letters, faxes and telephone conversations; and for attending the hearing of 15 October 2013 (total amount: EUR 5 060).
19 The amount claimed also includes reimbursement of expenses allegedly incurred by his representative: travel expenses for attending the hearing (EUR 219); accommodation expenses incurred in that context (EUR 105); a lump sum for miscellaneous expenses (postage, faxes, photocopies) (EUR 20).
20 In addition, the amount covers reimbursement of the legal fees which, the intervener claims, were incurred for legal services provided in the context of this application for taxation of costs (EUR 345).
The absence of sufficient information
21 With regard to the amount claimed for legal fees, the intervener submits that all of the legal services provided in the context of the main proceedings come to a total number of 22 hours.
22 That figure is disputed by the applicant, which emphasises that the intervener has not produced any invoice sent by his representative. According to the applicant, unless such invoices are produced, it cannot be established that the fees in respect of which reimbursement is sought were actually incurred by that party.
23 According to case-law, failure to produce invoices or other documents showing actual payment of legal fees and expenses incurred does not prevent the Court from making a fair assessment and setting the amount of recoverable costs (see, to that effect, order of 26 January 2006, Camar v Commission, T‑79/96 DEP and T‑260/97 DEP, not published, EU:T:2006:25, paragraph 53 and the case-law cited).
24 Submitting such invoices may, however, assist the Court in performing its task since the ability to assess the value of work carried out is dependent on the accuracy of the information provided (see, to that effect, order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 30).
25 In the present case, the Court notes that the intervener provides limited information to support his application for reimbursement of the legal fees incurred in the context of the main proceedings. In fact, the intervener simply listed the legal services which he claims should be reimbursed and failed to indicate the time spent in providing each of those services.
26 The absence of accurate and sufficient information therefore puts the Court in a situation where 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).
The number of hours worked
27 With regard to the number of hours worked, the Court recalls that, according to case-law, the EU judicature is not empowered to tax fees payable by the parties to their own lawyers. It may determine only the amount of those fees that may be recovered from the party ordered to pay the costs (see, to that effect, order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 10 and the case-law cited).
28 In the absence of a provision laying down fee-scales under EU law, the Court may assess that amount, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU 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 (see, to that effect, order of 14 May 2013, Arrieta D. Gross v OHIM, T‑298/10 DEP, not published, EU:T:2013:237, paragraph 18 and the case-law cited).
29 With regard to the purpose and nature of the proceedings, the Court notes that the main proceedings concerned the opposition brought by the applicant against the intervener’s application for registration of an EU mark. The ground relied on in support of the opposition was that laid down in Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) (now Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1)).
30 By their nature and purpose, such proceedings, which form part of a specific yet recurring body of cases before the Court, will not be dealt with in a way that would warrant a claim for especially high fees.
31 With regard to the legal significance of the proceedings from the point of view of EU law, the Court notes that the main proceedings raised no new or particularly complex point of law.
32 In fact, whilst the case was admittedly of financial interest to the intervener, that financial interest, failing any concrete evidence adduced by the latter, cannot be regarded as unusual or significantly different from that which underlies any opposition proceedings against an application for registration of an EU trade mark.
33 With regard to the amount of work generated, the primary consideration of the EU judicature must be the total number of hours of work which appears to be objectively necessary for the purpose of the proceedings (see, to that effect, orders of 28 June 2004, Airtours v Commission, T‑342/99, EU:T:2004:192, paragraph 30; and of 22 March 2010, Mülhens v OHIM — Spa Monopole (MINERAL SPA), T‑93/06 DEP, not published, EU:T:2010:106, paragraph 21).
34 As noted by the applicant, several services mentioned in the application for reimbursement are tasks which can be carried out rapidly. This includes, inter alia, emails and letters sent to the intervener by his representative forwarding documents notified by the Court Registry. This is also true of the telephone conversations with the Court Registry regarding the hearing.
35 The Court finds that the intervener’s four-page response, which constitutes the bulk of the legal work carried out by his representative, is fairly brief. The legal details are set out succinctly. Drafting that document does not seem to have entailed any particularly extensive amount of work.
36 In addition, the intervener’s representative already had a very good knowledge of the case because he had represented that party before the main proceedings were initiated, during the procedure before the Opposition Division and the Board of Appeal of EUIPO.
37 This fact is likely to have facilitated his work, at least in part, and reduced the preparation time required for the response (see, to that effect, orders of 13 January 2006, IPK-München v Commission, T‑331/94 DEP, EU:T:2006:11, paragraph 59; and of 17 July 2012, Budějovický Budvar v OHIM, T‑60/04 DEP to T‑64/04 DEP, not published, EU:T:2012:390, paragraph 19).
38 Lastly, it follows from the case-law that legal fees relating to periods subsequent to the oral procedure before the Court cannot be regarded as expenses necessarily incurred for the purpose of the proceedings (see, to that effect, order of 10 September 2009, C.A.S. v Commission, C‑204/07 P-DEP, EU:C:2009:526, paragraph 24 and the case-law cited).
39 Therefore, for the purpose of setting the amount of recoverable costs, the Court must disregard the fees for assessing the Court’s judgment of 9 April 2014, Pico Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE) (T‑623/11, EU:T:2014:199) and for sending to the intervener a report thereon, which he claims should be reimbursed.
40 In the light of all of those considerations, the Court finds that the total number of hours of work which a professional capable of working efficiently and rapidly would have had to dedicate to all the tasks involved in representing the intervener before the Court should not exceed 16 hours in total.
The hourly rate
41 The intervener claims that an hourly rate of EUR 230 should be applied in the calculation of the recoverable fees.
42 The application of that rate is disputed by the applicant. It submits that German law should apply, pursuant to which hourly rates may be set by a lawyer in one case only: if there is a written agreement between the parties. In the applicant’s view, for the Court to be able to take into account the hourly rate which he has put forward, the intervener has to produce such an agreement.
43 In that respect, the Court notes that, when assessing the costs to be recovered, the Court is not bound by any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (see, to that effect, order of 14 May 2013, Arrieta D. Gross v OHIM, T‑298/10 DEP, not published, EU:T:2013:237, paragraph 17 and the case-law cited).
44 It must also be pointed out that a relatively high hourly rate may be applied to remunerate the services of professionals capable of working efficiently and rapidly (see, to that effect, order of 17 October 2008, Infront WM v Commission, T‑33/01 DEP, not published, EU:T:2008:449, paragraph 31, and the case-law cited).
45 In this instance, the Court finds that, against the background of the case, the hourly rate sought, namely EUR 230, can be regarded as appropriate.
46 On the basis of those considerations relating to the accepted number of recoverable hours (16 hours) and to the rate considered (EUR 230 per hour), the Court considers it a fair assessment of the fees to be recovered by the intervener to set the amount thereof at EUR 3 680.
Accommodation expenses
47 The intervener is seeking reimbursement of accommodation expenses incurred by his representative for the hearing of 15 October 2013.
48 The applicant disputes those expenses, claiming that they are not necessary. It draws attention to the fact that its own representative travelled to and from the Court on the day of the hearing and, therefore, incurred no accommodation costs. The applicant is of the opinion that the intervener’s representative also could have done so.
49 The Court has already ruled that the accommodation expenses of a party’s lawyer for attending a hearing can be regarded as necessary expenses for the purpose of the proceedings before the Court if they are not disproportionate and if they are evidenced by an invoice annexed to the application for taxation of costs (order of 20 July 2016, Hansson v Schräder, C‑546/12 P-DEP, not published, EU:C:2016:594, paragraph 30).
50 In this instance, those requirements can be considered satisfied. An invoice in the name of the intervener’s representative was produced for the amount claimed (EUR 105). This is a reasonable amount in view of the hotel rates being charged in the cities located near the seat of the Court. The intervener’s representative had to travel a distance of approximately 350 km to reach the Court and attend the hearing. A party’s representative cannot be expected to travel such a distance on the day of the hearing when the hearing starts at 11:00, as was the case here.
51 In those circumstances, the Court finds that the accommodation expenses incurred by the intervener’s representative are recoverable costs.
Other expenses
52 The intervener is also seeking reimbursement of travel expenses for attending the hearing (EUR 219) and of miscellaneous expenses incurred for his representation (postage, faxes, photocopies) (EUR 20).
53 The applicant does not dispute those travel and miscellaneous expenses. They appear necessary for the intervener’s participation in the proceedings and their amount is reasonable. The Court will therefore allow the intervener’s application in that respect and grant the amounts which he claims should be reimbursed in that regard.
The costs relating to the present proceedings
54 Lastly, the intervener is seeking reimbursement of fees relating to his representation in the present taxation of costs proceedings. According to him, his representation required 1 hour 30 of work, to be charged at the hourly rate indicated for his representation in the main proceedings (EUR 230). The intervener is therefore seeking reimbursement amounting to EUR 345 in that respect.
55 The applicant disputes that head of claim, taking the view that the intervener may not be reimbursed for the legal services provided in the context of those taxation of costs proceedings, failing any legal provision envisaging such reimbursement.
56 In that respect, the Court notes that, according to settled case-law, in order to determine the amount of recoverable costs, the Court is to take account of all the circumstances of the case until the delivery of the order on taxation of costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (order of 25 March 2014, Marcuccio v Commission, T‑126/11 P-DEP, EU:T:2014:171, paragraph 27).
57 An application for taxation of costs is of a fairly standardised nature and is characterised, generally, by the absence of any difficulty for the lawyer who has already dealt with the substance of the case (see, to that effect, orders in France Télévisions v TF1, C‑451/10 P-DEP, not published, EU:C:2012:323, paragraph 32; and of 10 October 2013, OCVV v Schräder, C‑38/09 P-DEP, not published, EU:C:2013:679, paragraph 42).
58 The absence of any difficulty is confirmed, in this instance, by the shortness of the application submitted by the intervener.
59 In the light of those criteria, the number of hours which the intervener’s representative dedicated to those proceedings does not seem to be exaggerated.
60 In any event, there is no reason for setting the hourly rate at a level other than that applicable in the main proceedings.
61 In those circumstances, the amount of EUR 345, representing 1 hour 30 of work at an hourly rate of EUR 230, seems a reasonable amount to cover the expenses relating to the present proceedings.
Conclusion on costs
62 In the light of all the above considerations, the total amount of costs to be recovered, including the costs relating to the present taxation proceedings is set at EUR 4 369.
The claim for default interest
63 The finding of any obligation to pay default interest and the fixing of the applicable rate fall within the jurisdiction of the Court under Article 170(1) of the Rules of Procedure (see, to that effect, order of 25 March 2014, Marcuccio v Commission, T‑126/11 P-DEP, not published, EU:T:2014:171, paragraph 51).
64 According to settled case-law, an application made in the course of proceedings for taxation of costs seeking to add default interest to the amount due must be allowed for the period between the date of notification of the order of taxation of costs and the date of actual recovery of the costs (see, to that effect, order of 25 March 2014, Marcuccio v Commission, T‑126/11 P-DEP, not published, EU:T:2014:171, paragraph 52 and the case-law cited).
65 With regard to the applicable interest rate, the Court considers it appropriate to take account of Article 83(2)(b) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).
66 In accordance with that provision, the applicable interest rate is to be calculated on the basis of the interest rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which payment is due, increased by three and a half percentage points.
On those grounds,
THE GENERAL COURT (First Chamber),
hereby orders:
1. The total amount of costs to be reimbursed by Pico Food GmbH is set at EUR 4 369.
2. Default interest shall be due on that amount from the date of notification of the present order until the date of payment; the applicable interest rate shall be calculated on the basis of the interest rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which payment is due, increased by three and a half percentage points.
Luxembourg, 30 November 2016.