ORDER OF THE GENERAL COURT (First Chamber)
6 June 2013(*)
(Taxation of costs)
In Case T‑486/07 DEP,
Ford Motor Company, established in Dearborn, Michigan (United States), represented by R. Ingerl, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Alkar Automotive, SA, established in Derio (Spain), represented by S. Alonso Maruri, lawyer,
APPLICATION for taxation of costs to be reimbursed by the applicant to the intervener following the judgment of the General Court of 22 March 2011 in Case T‑486/07 Ford Motor v OHIM – Alkar Automotive (CA), not published in the ECR,
THE GENERAL COURT (First Chamber),
composed of J. Azizi (Rapporteur), President, S. Frimodt Nielsen and M. Kancheva, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By application lodged at the Court Registry on 21 December 2007, the applicant, Ford Motor Company, brought an action for annulment against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 25 October 2007 (Case R 85/2006-4) relating to opposition proceedings between Ford Motor Company and Alkar Automotive, SA (‘the contested decision’).
2 The intervener, Alkar Automotive, SA, intervened in the dispute to request that the action be dismissed and the applicant be ordered to pay the costs.
3 By judgment of 22 March 2011, the General Court dismissed the action and ordered the applicant to pay the costs on the basis of Article 87(2) of the Rules of Procedure of the General Court.
4 By letter dated 5 October 2011, the intervener requested the applicant to pay it the amount of its costs, which it calculated at EUR 11 850. On 10 October 2011, the applicant disputed that request. In particular, as regards the costs linked to the proceedings before the General Court amounting to EUR 11 000, it considered that that amount could not be determined with certainty and was too high taking into account the limited scope and the nature of the case at issue and the fact that the intervener submitted only a submission of nine pages and did not participate in the hearing.
5 By application lodged at the Court Registry on 21 November 2012, the intervener brought an application on the basis of Article 92(1) of the Rules of Procedure for taxation of costs by which it requested the Court to set the amount of the recoverable costs, the reimbursement of which is a matter for the applicant.
6 By response lodged at the Court Registry on 5 February 2013, the applicant claimed that that application should be dismissed and that the costs incurred by the intervener relating to the proceedings before the General Court should be set at an amount not exceeding EUR 2 500.
Law
1. Arguments of the parties
7 The intervener requests the Court to set the amount of its recoverable costs. It attaches to that request an invoice dated 5 October 2011, drawn up by its lawyer, in which the amount of the costs incurred by it in relation to the proceedings before the General Court amount to EUR 11 000. In addition, in support of that request it attaches an email dated 14 October 2011, in which its lawyer breaks down those costs as follows. First, an amount of EUR 1 950, corresponding to the expenses of two meetings at the intervener’s offices to explain the situation and the procedure, the possibilities and consequences of an action before the General Court. Secondly, an amount of EUR 1 050, corresponding to translation and notarisation costs of documents required by the Court. Thirdly, an amount of EUR 6 350, corresponding to the costs for studying the case in a foreign language and drafting the response. Fourthly, an amount of EUR 750 corresponding to the costs for lodging documents with the Court Registry. Fifthly, an amount of EUR 550, corresponding to the costs of studying and communication of OHIM’s response to the intervener. Finally, sixthly, an amount of EUR 550, corresponding to the costs incurred for receiving, studying and communicating the Court’s judgment to the intervener.
8 The applicant raises objections only with regard to the costs relating to the proceedings before the General Court. In that regard, the applicant considers, in the first place, that the case in the main proceedings had no unusual significance for European Union law and did not raise any new legal issues. Moreover, as regards its purpose and nature, it was not particularly complex.
9 In the second place, the applicant considers that, in the absence of evidence from the intervener in that respect and given that the intervener did not attend the hearing, the case cannot be considered to have an unusual economic interest or to be significantly different from that on which any opposition brought against an application for registration of a Community trade mark is based.
10 In the third place, the applicant considers that the letter from the intervener’s lawyers of 5 October 2011 does not in itself constitute a decisive factor in the calculation of the recoverable costs. The applicant observes that the intervener did not provide a breakdown of the hourly rates or the time spent on each item in the summary of fees and expenses attached to its application for taxation of costs. Moreover, according to the applicant the intervener did not produce any documents enabling the Court to establish that the fees claimed by it are well founded. Consequently, the applicant considers that it cannot be assessed, inter alia, whether the two meetings between the intervener and its lawyers actually took place. In any event, it considers that the two meeting were not necessary since all relevant facts had already been taken into account during the proceedings before OHIM and since electronic communication ought to have been sufficient in that regard. Furthermore, the applicant notes that the intervener did not produce any indication as to the total number of hours spent on the main proceedings. The applicant further considers that as the hourly rate for opposition proceedings generally does not exceed EUR 250, the total number of 44 hours claimed by the intervener, given the requested amount of EUR 11 000, is excessive. Finally, the applicant observes that the intervener’s reply included only nine pages and referred only to OHIM’s arguments so that its drafting should not have taken it a long time.
11 In the light of the foregoing, the applicant considers that the recoverable costs for the proceedings before the Court amount to EUR 2 500, that is 10 hours at EUR 250 per hour.
2. Findings of the Court
12 According to Article 92(1) of the Rules of Procedure:
‘If 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.’
13 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 purpose of proceedings before the General Court and, second, to those which were necessary for that purpose (see order of 5 March 2012 in Case T‑446/07 Royal Appliance International v OHIM – BSH Bosch und Siemens Hausgeräte (Centrixx), not published in the ECR, paragraph 11 and the case-law cited).
14 Since European Union law does not contain provisions laying down fee-scales, the Court must make an unfettered assessment of the facts of the case, taking into account the financial interests which the parties had in the proceedings, the purpose and nature of the proceedings, their significance from the point of view of European Union law as well as the difficulties presented by the case and the amount of work generated by the proceedings for the agents and advisers involved (see, in particular, orders of 29 October 2010 in Case C‑300/08 P‑DEP Celia v Leche Celta, not published in the ECR, paragraph 14, and in Case T‑80/97 DEP Starway v Council [2002] ECR II‑1, paragraph 27).
15 Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of the costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see, to that effect, order of 3 September 2009 in Case C‑326/05 P‑DEP Industries Químicas del Vallés v Commission, not published in the ECR, paragraph 35).
16 It is necessary to assess the amount of the recoverable costs in the intervener’s head of claim in terms of those criteria.
17 In the first place, it must be noted that the case in the main proceedings, as regards its purpose and nature, did not present any particular complexity. That case concerned an opposition brought by the applicant against the registration of the Community trade market requested by the intervener, the single plea in law relied on in support of the opposition being the likelihood of confusion referred to 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 Community trade mark (OJ 2009 L 78, p. 1)). The case in the main proceedings, which involved neither a new question of law nor a complex question of fact and did not entail a complex analysis, cannot be considered to be particularly difficult.
18 In the second place, it must be noted that, although the case in the main proceedings clearly had a certain economic interest for the intervener, that economic interest cannot be considered to be unusually important in the absence of specific factors put forward to that effect by the intervener (see, to that effect, order of 7 January 2008 in Case T‑206/04 DEP Rodrigues Carvalhais v OHIM – Profilpas (PERFIX), not published in the ECR, paragraph 13).
19 In the third place, in assessing the extent of the work generated by the judicial proceedings in the case in the main proceedings for the intervener’s lawyer, it must be borne in mind that it is for the Court 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 bear in mind that the ability of the European Union Court to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Case T‑342/99 DEP Airtours v Commission [2004] ECR I‑1785, paragraph 30 and the case-law cited).
20 In the present case, it must be noted that the intervener neither provided the hourly rate applicable to the services provided nor produced a statement of the costs in which those are broken down precisely according to the work carried out. The intervener also did not submit supporting documents or a note of fees enabling the Court to determine whether the fees claimed by it were well founded. The evidence provided to the Court therefore does not enable it usefully to assess the scope of the work actually carried out.
21 The lack of more precise information makes it particularly difficult to determine the costs incurred for the purpose of the proceedings before the General Court and whether they are necessary. In those circumstances a strict assessment of the recoverable fees is necessary (see order of 27 April 2009 in Case T‑263/03 DEP Mülhens v OHIM – Conceria Toska (TOSKA), not published in the ECR, paragraph 18 and the case-law cited).
22 In the light of the foregoing, it is necessary to observe that the intervener did not set out the reason why two meetings with its lawyer were objectively necessary for the purposes of the proceedings before the Court. The entirety of the costs relating to those two meetings cannot therefore be considered to be necessary.
23 The intervener’s actual participation in the proceedings before the Court was limited to producing a response of nine pages. Since the intervener did not participate in the hearing, it could not have had any costs relating to that. Moreover, only two of the nine pages of the response are used for the intervener’s arguments. Therefore, the work in drafting that response could not have been very substantial. It follows that the amount of EUR 6 350 claimed for the costs of studying the case and drafting the response are manifestly excessive.
24 Moreover, that response has seven simply routine annexes attached, the presentation of which required no intellectual or significant administrative work: a certificate, its translation, the power of attorney of the intervener’s lawyer, evidence of the intervener’s legal personality, its translation, the decision of the Opposition Division and the decision of the Board of Appeal at issue in the case in the main proceedings. Other than the two decisions cited above, none of the documents attached to the response was more than one page long. It follows that the amount of EUR 1 050 claimed for obtaining, translating and certifying documents submitted during the intervention before the Court is excessive.
25 Moreover, taking account of the fact that the intervention and its annexes amount to 39 pages, the costs of EUR 750 requested by the intervener for lodging those documents and their copies with the Court Registry must also be considered to be excessive.
26 Finally, the amount of more than EUR 1 000 claimed by the intervener’s lawyer for analysing and communicating to the intervener OHIM’s response and the judgment of the Court of 22 March 2011 is excessive.
27 In the light of all the foregoing considerations, the Court considers that all the costs recoverable by the intervener for the proceedings before the General Court will be fairly assessed by setting their amount at EUR 3 000, which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
The total amount of costs which Ford Motor Company must repay to Alkar Automotive, SA, in Case T‑486/07 is set at EUR 3 000.
Luxembourg, 6 June 2013.
E. Coulon | J. Azizi
Registrar | President |