ORDER OF THE GENERAL COURT (Sixth Chamber)
26 January 2017 (*)
(Procedure — Taxation of costs)
In Case T‑181/14 DEP,
Nürburgring GmbH, established in Nürburg (Germany), represented by M. Viefhues and C. Giersdorf, lawyers,
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
Lutz Biedermann, residing in Villingen-Schwenningen (Germany), represented by A. Jacob and M. Ziliox, lawyers,
APPLICATION for taxation of costs further to the judgment of 26 November 2015, Nürburgring v OHIM – Biedermann (Nordschleife) (T‑181/14, not published, EU:T:2015:889),
THE GENERAL COURT (Sixth Chamber)
composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Registry of the General Court on 20 March 2014, the applicant, Nürburgring GmbH, brought an action against the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 January 2014 (Case R 163/2013-4), relating to opposition proceedings between Mr Lutz Biedermann and the applicant.
2 The intervener, Mr Lutz Biedermann, intervened in support of the form of order sought by EUIPO in the main proceedings. He contended that the Court should dismiss the action and order the applicant to pay the costs.
3 By judgment of 26 November 2015, Nürburgring v OHIM — Biedermann (Nordschleife) (T‑181/14, not published, EU:T:2015:889) the Court dismissed the application as unfounded and ordered the applicant to pay the costs, including those of the intervener, on the basis of Article 134(1) of the Court’s Rules of Procedure.
4 By emails of 21 April and 3 May 2016, the intervener’s representative requested the applicant’s representative to settle the amount of recoverable costs. By email of 4 May 2016, the applicant’s representative replied as follows:
‘The receiver cannot make a payment without a formal decision, regardless of the amount of the costs which you have claimed. Thus, we cannot simply reach an agreement and settle under contract the reimbursement of the costs which you claim.’
5 By application lodged at the Court Registry on 27 June 2016, the intervener requested the Court to fix, pursuant to Article 170(1) of the Rules of Procedure, the amount of recoverable costs which the applicant must reimburse at EUR 11 885.87, in respect of the proceedings giving rise to the judgment of 26 November 2015, Nordschleife (T‑181/14, not published, EU:T:2015:889).
6 The applicant did not submit observations on that application for taxation for costs.
Law
7 It follows from Article 170(3) of the Rules of Procedure that, 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.
8 In that regard, it should be borne in mind that, in the present case, before the application for taxation of costs was lodged, the applicant had informed the intervener that it was impossible for it to give its agreement to any amount recoverable and to make a payment without a formal decision of the Court. In the light of the particular circumstances of the present case, that assertion must be interpreted as constituting a dispute concerning the costs to be recovered within the meaning of Article 170(1) of the Rules of Procedure. Furthermore, it cannot be inferred from the fact that, after the application for taxation of costs had been filed, the applicant informed the Court that it did not intend to submit observations on that application that it agreed with the amount of the costs claimed or the taxation of recoverable costs.
9 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. 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 were necessary for that purpose (see order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM — Yorma’s (Yorma Eberl), T‑229/14 DEP, not published, EU:T:2016:177, paragraph 9 and the case-law cited).
10 With regard to lawyers’ fees, it should be observed that, according to a consistent line of case-law, 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 party ordered to pay the costs. 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 orders of 11 December 2014, Ecoceane v EMSA, T‑518/09 DEP, not published, EU:T:2014:1109, paragraph 12 and the case-law cited, and of 17 March 2016, Yorma Eberl, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 10 and the case-law cited).
11 It has also consistently been held that, in the absence of provisions relating to tariffs, 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 orders of 11 December 2014, Ecoceane v EMSA, T‑518/09 DEP, not published, EU:T:2014:1109, paragraph 13 and the case-law cited, and of 17 March 2016, Yorma Eberl, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 11 and the case-law cited).
12 Lastly, where a natural or legal person is subject to value added tax (VAT), that person is entitled to recover from the tax authorities the VAT paid on the goods and services which that person purchases. The VAT does not therefore represent expenditure for that person, with the result that the amounts paid in respect of that tax must not be taken into account for the purposes of calculating the recoverable costs (see, to that effect and by analogy, order of 19 January 2016, Copernicus-Trademarks v OHIM — Blue Coat Systems (BLUECO), T‑685/13 DEP, not published, EU:T:2016:31, paragraph 26 and the case-law cited). Consequently, the amount claimed in respect of VAT is regarded as constituting recoverable costs only if the natural or legal person claiming that amount establishes that it is not subject to VAT (see, by analogy, order of 21 May 2014, Esge v OHIM– De’Longhi Benelux (KMIX), T‑444/10 DEP, not published, EU:T:2014:356, paragraph 42).
13 The amount of the costs recoverable in the present case must be determined in accordance with those criteria.
14 First of all, since the intervener, as the proprietor of a trade mark, is an individual who is capable of pursuing an economic activity and is thus liable to VAT, and given that he has not established that he was not subject to VAT (see, to that effect, order of 29 June 2015, Reber v OHIM — Klusmeier (Wolfgang Amadeus Mozart PREMIUM), T‑530/10 DEP, not published, EU:T:2015:482, paragraph 51), the amount of VAT on the costs and fees of his representative cannot be regarded as recoverable costs, in accordance with the case-law cited in paragraph 12 above. Consequently, account must be taken of the amounts, excluding VAT, indicated on the invoices.
15 Furthermore, the amount of costs in respect of which the intervener seeks reimbursement comes to EUR 9 988.13, excluding VAT. In that regard, the intervener submitted two invoices from his lawyers, dated 24 June 2014 and 28 September 2015, concerning the fees and costs incurred during, respectively, the period from 4 April to 24 June 2014 (‘the first period’) and during the period from 6 August to 28 September 2015 (‘the second period’). The costs claimed by the intervener are made up as follows:
– legal fees in the amount of EUR 5 445 due in respect of the first period and in the amount of EUR 2 648.50 due in respect of the second period;
– travel and subsistence expenses of one of his representatives to attend the hearing held on 16 September 2015, in the amount of EUR 1 121.65 due for the second period;
– ‘Drafting’, photocopying and postage costs in the amount of EUR 506.38 due for the first period and in the amount of EUR 266.60 due in respect of the second period.
The lawyers’ fees
16 It appears from the documents produced by the intervener that he is seeking the total sum of EUR 8 093.50, corresponding to 29.431 hours of work which his lawyer claims to have devoted to the tasks relating to the main proceedings and billed at an hourly rate of EUR 275 per hour, that is to say, EUR 5 445 for the 19.8 hours worked during the first period and EUR 2 648.50 for the 9.631 hours worked during the second period.
17 In the first place, it must be noted that the purpose and nature of the main proceedings did not present any particular complexity. The case raised a question falling within the context of ordinary trade-mark litigation, namely that of whether there was a likelihood of confusion within the meaning of 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), raised in the course of opposition proceedings against an application for a European Union trade mark. The applicant had, moreover, invoked only one plea in support of its action, alleging that there was no such likelihood of confusion. The case in question concerned neither a new point of law nor a complex factual situation, and cannot therefore be regarded as presenting any particular difficulty. Likewise, the case did not have any particular significance in relation to European Union law, inasmuch as the judgment of 26 November 2015, Nordschleife (T‑181/14, not published, EU:T:2015:889) forms part of a well-established line of case-law. Moreover, the intervener did not claim, in his application for taxation of costs, that the case was particularly complex or important.
18 Second, although the case was evidently of clear economic interest to the intervener, he did not submit to the Court any evidence that that interest could be regarded, in the present case, as unusual, or significantly different from that on which any opposition brought against an application for registration of an European Union trade mark is based (see, to that effect, orders of 19 March 2009, House of Donutsv 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).
19 Third, as regards the extent of the work to which the proceedings may have given rise for the intervener, it is important to recall that the primary consideration for the Court is the total number of hours of work which may appear to be objectively necessary for the purposes of the proceedings before the Court. In this respect, 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 12 January 2016, ANGIPAX, T‑368/13 DEP, not published, EU:T:2016:9, paragraphs 15 and 20 and the case-law cited).
20 In the present case, as regards the hourly rate, the Court takes the view that the hourly rate of EUR 275 applied by the intervener’s lawyer is excessive and considers it appropriate to reduce it to EUR 250, as such a rate is considered to be reasonable for the type of litigation at issue in the case (see, to that effect, order of 15 September 2016, Giuntoli v EUIPO — Société des produits Nestlé (CREMERIA TOSCANA), T‑256/14 DEP, not published, EU:T:2016:549, paragraph 13 and the case-law cited). Nevertheless, it should be pointed out that this rate can be regarded as appropriate only as remuneration for the services of a particularly experienced professional, who is able to work very efficiently and quickly. For remuneration at such a rate to be taken into account there must, moreover, in return be an assessment, which must be strict, of the total number of hours of work necessary for the purposes of the proceedings before the Court (see, to that effect, order of 18 September 2015, Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība and Others v Commission, T‑414/08 DEP to T‑420/08 DEP and T‑442/08 DEP, not published, EU:T:2015:726, paragraph 51 and the case-law cited).
21 It is therefore necessary for the Court to determine whether the steps taken and the documents drafted objectively required the intervener’s lawyer to work for 19.8 hours during the first period and for 9.631 hours during the second period.
22 In that regard, the intervener sets out the steps taken and the documents drafted by his representative in the main proceedings, namely the examination of the application, the preparation of the response of 20 June 2014, the examination of EUIPO’s response of 13 June 2014, the drafting of his request of 8 October 2014 for a hearing to be held, the preparation of the response, of 6 August 2015, to the measure of organisation of procedure adopted by the Court, the examination of the responses of the applicant and of EUIPO of 29 July and 3 August 2015, respectively, to that measure of organisation of procedure, the preparation for the hearing held on 16 September 2015 and, finally, the participation in that hearing.
23 However, the two invoices produced by the intervener, dated 24 June 2014 and 28 September 2015, are not precisely broken down in such a way as to indicate the time spent carrying out each of those tasks. The lack of more detailed information makes it particularly difficult to verify the costs incurred for the purpose of the proceedings before the Court and those which were necessary for that purpose. In those circumstances, a strict assessment of the fees recoverable is necessary (see, to that effect, order of 1 August 2014, Phonebook of the Worldv OHIM — Seat Pagine Gialle (PAGINE GIALLE), T‑589/11 DEP, not published, EU:T:2014:731, paragraph 17 and the case-law cited).
24 As regards the procedure in the main proceedings, it should be pointed out that the written procedure consisted of an exchange of pleadings and that a hearing was held on 16 September 2015. It should be noted that the intervener’s actual participation in the proceedings before the Court amounted to a two-page observation on the language of the case, the production of a 10-page response, a 2-page submission setting out his view on the holding of a hearing, the drafting of a 2-page response to the measure of organisation of procedure of the Court, and participation in the hearing.
25 First, it must be observed that the intervener’s response contained an argument devoted to the rebuttal of the applicant’s arguments relating to a question already addressed before the Board of Appeal, namely the comparison of the signs at issue. It must therefore be held that no major difficulty was encountered in preparing that response. It should also be noted that the intervener’s representative already had extensive knowledge of the case, having represented him during the administrative procedure. This consideration is likely to have, in part, facilitated his work and reduced the time spent preparing the response. It follows from the case-law that the work carried out in the proceedings before the Board of Appeal reduces the scope of the work to be carried out before the Court, and consequently the amounts which may be recovered in this respect (order of 19 January 2016, BLUECO, T‑685/13 DEP, not published, EU:T:2016:31, paragraph 21).
26 Second, it must be held that the observations concerning the language of the case, which were not intended to challenge that language, the statement of reasons for the view concerning the holding of a hearing and the response to the measure of organisation of procedure of the Court are short documents.
27 Third, it is important to note that the hearing, in which the intervener took part, lasted one hour and three minutes.
28 Fourth, with regard to the invoice of 28 September 2015 relating to the second period, this also refers to costs relating to the period after 16 September 2015, the date of the hearing, relating to a report on the latter drawn up on 18 September 2015, without those costs being precisely quantifiable due to the fact that they are not broken down in that invoice (see paragraph 23 above). According to the case-law, however, recovery must be refused for costs pertaining to the period subsequent to the oral procedure if no procedural document was adopted after the hearing, as is the case here (see, to that effect, order of 17 March 2016, Yorma Eberl, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 16 and the case-law cited).
29 It follows from all of the foregoing that the number of working hours invoiced by the intervener’s representative appears to be higher than what may be regarded as indispensable for the purposes of the main Court proceedings, a fortiori as the fee notes submitted by the intervener do not contain sufficient details to make it possible to assess whether such a number of hours was justified.
30 Therefore, the Court considers it appropriate to set the total amount of working time objectively required by the intervener’s lawyer for the purposes of representing him during the judicial stage at 18 hours.
31 In view of all of the foregoing considerations, the costs recoverable by the intervener as lawyers’ fees may be assessed on an equitable basis at EUR 4 500.
Disbursements
32 As regards the travel and subsistence expenses incurred by the intervener’s representative in order to take part in the hearing of 16 September 2015 and the ‘drafting’, photocopying and postage costs, the intervener’s representative evaluated these, respectively, at, first, EUR 1 121.65 and, second, EUR 506.38 for the first period and EUR 266.60 for the second period.
33 As regards the travel and subsistence expenses of the intervener’s representative, it should be noted that the intervener invoiced an amount of EUR 1 121.65 for travel by air and taxi and a hotel stay. However, it must be noted that those various costs are not set out in detail and that the intervener has not submitted any evidence, other than the invoice of 28 September 2015 sent to him by his representative, to prove their amount.
34 It is, however, 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 claims reimbursement. Neither the party ordered to pay the costs nor the Court can be required to assess such costs on the basis, as in the present case, of a mere indicative figure provided by the person applying for costs. Consequently, in the present case, it was for the intervener to produce, inter alia, the invoice for the purchase of an airline ticket, or even boarding passes, a hotel invoice or even a hotel reservation, and one or more taxi fare receipts.
35 Consequently, the Court takes the view that, in the absence of any evidence capable of establishing the authenticity and the respective amounts of the various travel and subsistence expenses of the intervener’s representative, the applicant cannot be ordered to reimburse such costs to the intervener and it must be concluded that there are no recoverable costs in that respect.
36 As regards the ‘drafting’, photocopying and postage costs, evaluated at EUR 506.38 for the first period and at EUR 266.60 for the second period, the Court regards these as excessive and, therefore, considers it appropriate, in the particular circumstances of the case, to set, on a flat-rate basis, the amount of recoverable costs in that regard at EUR 100.
37 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 taxing their amount at EUR 4 600, which takes account of all the circumstances of the case up to the date of the present order.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
The total amount of the costs to be reimbursed by Nürburgring GmbH to Mr Lutz Biedermann is set at EUR 4 600.
Luxembourg, 26 January 2017.