ORDER OF THE GENERAL COURT (Sixth Chamber)
13 February 2017 (*)
(Procedure — Taxation of costs)
In Case T‑197/14 DEP,
La Zaragozana, SA, established in Zaragoza (Spain), represented by L. Broschat García, lawyer,
applicant,
v
European Intellectual Property Office (EUIPO),
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Charles Cooper Ltd, established in Leeds (United Kingdom), represented by H. Granado Carpenter and M. L. Polo Carreño, lawyers,
APPLICATION for taxation of the costs to be recovered from the applicant by the intervening party following the judgment of the Court of 21 May 2015, La Zaragozana v OHIM — Charles Cooper (GREEN’S) (T‑197/14, not published, EU:T:2015:313).
THE GENERAL COURT (Sixth Chamber)
composed of G. Berardis (Rapporteur), President, S. Papasavvas and O. Spineanu‑Matei, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 20 March 2014, the applicant, La Zaragozana, SA, brought an action for annulment of the decision of the Fifth Board of Appeal of EUIPO of 21 January 2014 (Case R 1284/2012-5) relating to opposition proceedings between La Zaragozana, SA and Charles Cooper Ltd.
2 The intervener, Charles Cooper Ltd, intervened in the proceedings in support of the former of order sought by EUIPO. It contended that the Court should dismiss the action and order the applicant to pay the costs.
3 By judgment of 21 May 2015, La Zaragozana v OHIM — Charles Cooper (GREEN’S) (T‑197/14, not published, EU:T:2015:313), the Court dismissed the action and ordered the applicant to pay the costs under Article 87(2) of the Rules of Procedure of 2 May 1991.
4 By email of 14 October 2015, the intervener requested the applicant to reimburse its costs, which it calculated in total at EUR 7 698.48.
5 In the absence of any response from the applicant, the intervener sent email reminders on 24 November 2015, 18 December 2015, 29 January 2016 and 3 March 2016 through its representatives. On 11 March 2016, the intervener sent a letter by recorded delivery to the applicant, repeating its request for recovery of the costs.
6 On 4 April 2016, the applicant responded by email to the letter sent by recorded delivery. It took the view that the recoverable costs in Case T‑197/14 amounted to EUR 2 400, to which EUR 1 650 of costs were to be added on the basis of the proceedings before the Board of Appeal of EUIPO.
7 The intervener disputed that amount and warned the applicant that an application for the taxation of costs would be brought before the Court.
8 By application lodged at the Court Registry on 23 May 2016, the intervener lodged, pursuant to Article 170(1) of the Rules of Procedure of the General Court, an application for taxation of costs by which it requested the Court to fix the amount of the recoverable costs, for the reimbursement of which the applicant was liable, at EUR 9 647.88. It stated that that amount corresponded to costs relating to representation and other expenses incurred before the Court, calculated at EUR 7 698.48, and other costs relating to the present proceedings for the taxation of costs, calculated at EUR 1 949.40.
9 On 11 July 2016, the applicant submitted its observations on that application. In the absence of any answer to a question put by the Court, seeking to ascertain whether the condition laid down in Article 73(1) of the Rules of Procedure had been satisfied, those observations were not added to the case file.
Law
10 Under Article 170(1) to (3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court hearing the case, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.
11 According to Article 140(b) of the Rules of Procedure, which corresponds to Article 91(b) of the Rules of Procedure of 2 May 1991, ‘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.
12 As regards proceedings relating to intellectual property rights, Article 190(2) of the Rules of Procedure, which corresponds to the first paragraph of Article 136(2) of the Rules of Procedure of 2 May 1991, states that the ‘costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal’ are also to be regarded as recoverable costs.
13 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 that may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the 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 (see order of 27 January 2016, ANKO v Commission and REA, T‑165/14 DEP, not published, EU:T:2016:108, paragraph 19 and the case-law cited).
14 It is also settled case-law that, failing any provisions of EU law relating to fee scales, the Court must make an unfettered assessment of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU law and also the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the economic interests that the parties had in the proceedings (see order of 27 January 2016, ANKO v Commissionand REA, T‑165/14 DEP, not published, EU:T:2016:108, paragraph 20 and the case-law cited).
15 It is in the light of those considerations that the amount of the recoverable costs must be assessed in the present case.
16 In the first place, it should be noted that the case in the main proceedings was not, as to its purpose and nature, particularly complex and cannot therefore be considered particularly difficult. Similarly, the fact remains that the case had no particular significance from the point of view of EU law in so far as the judgment of 21 May 2015, La Zaragozana v OHIM — Charles Cooper (GREEN’S) (T‑197/14, not published, EU:T:2015:313) follows the trend of existing case-law.
17 In the second place, regarding the economic interests at issue, it is not disputed, in the light of the importance of trade marks in business, that the intervener clearly had an interest in the applicant’s action for annulment of the decision of the Fifth Board of Appeal of EUIPO of 21 January 2014, cited in paragraph 1 above, being dismissed. However, the intervener has not put forward any factors capable of showing that that economic interest was particularly important in the present case (see, to that effect, orders of 19 March 2009, House of Donuts v OHIM — Panrico (House of donuts), T‑333/04 DEP and T‑334/04 DEP, not published, EU:T:2009:73, paragraph 15, and of 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, not published, EU:T:2016:9, paragraph 19).
18 In the third place, as regards the amount of work which the proceedings generated for the intervener’s representatives, it must be borne in mind that 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 order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 30 and the case-law cited). Nonetheless, the Courts of the European Union are not bound by the account lodged by the party who seeks to recover costs (order of 14 July 2015, Ntouvas v ECDC, T‑223/12 DEP, not published, EU:T:2015:570, paragraph 20).
19 In that regard, in support of its application for taxation of costs, the intervener produced, inter alia, an account of the expenses and fees of which it seeks payment and some invoices. As regards the first period, which corresponds to the main proceedings before the Court, the intervener produced several invoices, dated 15 July 2014, 9 October 2014, 26 May 2015 and 14 August 2014, for a total amount of EUR 7 698.48. As regards the second period, relating to the present proceedings for taxation of costs, the intervener presented two invoices, dated 22 March 2016 and 20 May 2016, for a total amount of EUR 1 949.40.
20 First of all, as regards the postage and delivery costs, calculated at EUR 202.96 for the first period and at EUR 139.88 for the second period, in so far as those costs are justified by invoices, the Court does not consider them to be excessive and therefore finds it appropriate to maintain the total amount of the recoverable costs at EUR 342.84.
21 Next, as regards the amount claimed as lawyers’ costs incurred for the purpose of the proceedings before the Court, it should be noted that the invoices produced by the intervener refer only to ‘services rendered in this matter’ and to various procedural documents drawn up for the purposes of defending the intervener’s interests in connection with the proceedings before the Court, without, however, stating the number of hours actually worked.
22 The Court notes that, when the amount of recoverable costs is fixed, it is appropriate to take account of the total number of hours’ work corresponding to the services provided and considered objectively necessary for the purposes of the proceedings concerned, irrespective of the number of lawyers who carried out that work (order of 14 November 2013, Schwaaner Fischwaren v Rügen Fisch, C‑582/11 P-DEP, EU:C:2013:754, not published, paragraph 25).
23 In that regard, first, it should be noted that the average hourly rate given by the intervener in the application for taxation of costs, namely, EUR 300, would appear too high. In the present case, the Court considers that a lower rate, of EUR 250 plus VAT, appears more reasonable for the type of proceedings in question (order of 12 January 2016, Meda v EUIPO, T‑647/13 DEP, not published, EU:T:2016:15, paragraph 25).
24 However, as regards the invoice of 14 August 2014, which refers to 2.5 hours of work, the Court notes that that invoice was issued by a representative through which the intervener’s representatives received instructions in the course of the proceedings before the Court. For this type of service, the hourly rate referred to, namely, GBP 100 (approximately EUR 117), seems reasonable. The Court therefore accepts that rate for that service only.
25 Second, it may be deduced from the hourly rate stated and the total amount requested by the intervener in its application for costs that the number of hours worked by the intervener’s representatives in preparing its case in the main proceedings before the Court amounts to approximately 25 hours.
26 In that regard, the fact remains that the law firm that represented the intervener in the action in the main proceedings was the same as that which represented it in the proceedings before the Opposition Division and the Board of Appeal of EUIPO. When a party’s lawyers have already assisted that party during proceedings or procedures preceding the relevant action, regard must also be had to the fact that those lawyers are aware of matters relevant to the action, which is likely to have facilitated their work and reduced the preparation time required for the judicial proceedings (see order of 13 January 2006, IPK-München v Commission, T‑331/94 DEP, EU:T:2006:11, paragraph 59 and the case-law cited).
27 In addition, in its response, the intervener had to address only the single plea of law in the application, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, as to whether there was a likelihood of confusion between the marks at issue. In that regard, it must be added that, in its application, the legal arguments were made over approximately 10 pages. In addition, the preparation of the intervener’s response clearly did not pose any major difficulty and was drawn up with the aid of EUIPO’s response. Lastly, it should be noted that the written phase of the proceedings involved only one exchange of pleadings between the parties and, having regard to the lack of difficulty in the case, no hearing was requested by the parties.
28 Furthermore, it appears from the invoices produced by the intervener that some of the itemised services in those invoices, such as the sending and preparation of documents, are clerical tasks that may not be invoiced at the hourly rate of a highly specialised lawyer and have already been accounted for in the postage and delivery costs.
29 The Court notes that, according to the case-law, the hourly rate which the intervener seeks to have applied must be taken into consideration, since remuneration at a high hourly rate is appropriate only for the services of professionals capable of working efficiently and rapidly, and must, consequently, have as quid pro quo a necessarily strict assessment of the total number of hours of work essential for the purposes of the proceedings concerned (see order of 12 January 2016, ANGIPAX, T‑368/13 DEP, not published, EU:T:2016:9, paragraph 16 and the case-law cited).
30 Consequently, in the light of the foregoing considerations, the Court fixes the number of hours objectively required for the purposes of the proceedings before the Court, including the present proceedings for taxation of costs, at 18 hours, of which 15.5 hours at the hourly rate of EUR 250 and 2.5 hours at the hourly rate referred to in paragraph 24 above.
31 Accordingly, an appropriate assessment of the total recoverable costs in respect of the intervener’s legal fees is EUR 4 167.50.
32 In the light of all the foregoing considerations (paragraphs 20 and 31 above), the Court considers that the costs recoverable by the intervener in respect of the procedure before the Court will be fairly assessed by taxing their amount at EUR 4 510.34, which takes account of all the circumstances of the case up to the date of this order.
33 It should be borne in mind that, by contrast to Article 133 of the Rules of Procedure, which provides that a decision as to costs is to be given in the judgment or order which closes the proceedings, no such provision is provided for in Article 170 of the Rules of Procedure. That is because, when the Court fixes the amount of the recoverable costs, it takes account of all the circumstances of the case up to the time that the order on taxation of costs was made. It is therefore not necessary to adjudicate separately on the costs incurred for the purposes of the present proceedings (order of 19 January 2016, Copernicus-Trademarks v OHIM, T‑685/13 DEP, not published, EU:T:2016:31, paragraph 34).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
The total amount of costs to be reimbursed by La Zaragozana, SA is fixed at EUR 4 510.34.
Luxembourg, 13 February 2017.