GIUNTOLI v EUIPO — SOCIÉTÉ DES PRODUITS NESTLÉ (CREMERIA TOSCANA)

ORDER OF THE GENERAL COURT (Ninth Chamber)

15 September 2016 (1)

(European Union trade mark –– Procedure — Taxation of costs)

In Case T‑256/14 DEP,

Andrea Giuntoli, residing in Barcelona (Spain), represented by A. Canela Giménez, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by S. Palmero Cabezas, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Société des produits Nestlé SA, established in Vevey (Switzerland), represented by A. Jaeger-Lenz and T. Bösling, lawyers,

APPLICATION for taxation of the costs to be recovered from the applicant by the intervening party following the judgment of the General Court of 29 October 2015 in Giuntoli v OHIM — Société des produits Nestlé (CREMERIA TOSCANA) (T‑256/14, not published, EU:T:2015:814),

THE GENERAL COURT (Ninth Chamber),

composed of G. Berardis, President, O. Czúcz (Rapporteur) and A. Popescu, Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts, procedure and forms of order sought

1        In its judgment of 29 October 2015 in Giuntoli v OHIM — Société des produits Nestlé (CREMERIA TOSCANA) (T‑256/14, not published, EU:T:2015:814), the Court dismissed the action brought by the applicant, Andrea Giuntoli, and ordered the applicant to pay the costs of the intervener, Société des Produits Nestlé SA.

2        By letter of 6 April 2016, the intervener requested the applicant to reimburse to it a total amount of EUR 6 045.03 for the costs incurred in relation to the proceedings. The payment date of 25April 2016 indicated in that letter expired without any reimbursement being received by the intervener.

3        By document received at the Court Registry on 2 May 2016, the intervener brought the present application for taxation of costs, pursuant to Article 170(1) of the Rules of Procedure of the General Court, by which it claims that the Court should tax the amount of recoverable costs that the applicant must reimburse at EUR 6 595.03. The applicant did not submit observations within the period prescribed by the Court.

 Law

4        Article 170 of the Court’s Rules of Procedure states:

‘1.      If there is a dispute concerning the costs to be recovered, the party concerned may apply to the General Court to determine the dispute. …

3.      After giving the party concerned by the application an opportunity to submit his observations, the General Court shall give its decision by way of an order from which no appeal shall lie.’

5        As was stated in paragraph 2 above, on 6 April 2016 the intervener requested the applicant to reimburse the costs that it considered recoverable. As it was not paid by the date on which the present application was brought, that amount must be considered to be contested by the applicant.

6        According to Article 140(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 regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purposes of the proceedings before the Court and, second, to those that were necessary for those purposes (see, to that effect, order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 13 and the case-law cited).

7        According to the case-law, the General Court is not empowered to tax the fees payable by the parties to their own lawyers but it may determine the amount of those fees which 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 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).

8        In the absence of provisions of EU law laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings (see, to that effect, orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18, and of 3 October 2012, Diputación Foral de Álava and Others v Commission, T‑86/02 DEP to T‑88/02 DEP, not published, EU:T:2012:520, paragraph 16).

9        It is in the light of the foregoing considerations that the amount of the recoverable costs in the present case must be assessed.

10      In support of its claim for taxation of the costs, the intervener has provided invoices for a total amount of EUR 6 595.03 corresponding to, on the one hand, an amount of EUR 6 045.03 of representation costs relating to 23 hours and 15 minutes of work at an hourly rate of EUR 260 with respect to the main proceedings as well as, on the other hand, an amount of EUR 550 of representation costs corresponding to two hours of work at an hourly rate of EUR 275 with respect to the proceedings at issue. However, the intervener has not presented specific arguments as to the purpose and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, or the amount of work or financial interest involved to justify the amount of the expenses sought.

11      In the first place, the judgment of 29 October 2015, CREMERIA TOSCANA (T‑256/14, not published, EU:T:2015:814), shows that that case concerned an application made by the applicant for annulment on the basis of a single plea in law alleging an infringement of Article 8(1)(b) of Regulation No 207/2009, which did not present a higher than average degree of complexity and did not raise significant questions from an EU-law point of view.

12      In the second place, first, according to the case-law, the hourly rate which an intervener seeks to have applied must be taken into account, since remuneration at a high hourly rate is appropriate only for the services of professionals who are capable of working efficiently and rapidly and must therefore be counterbalanced by a necessarily strict evaluation of the total number of hours of work necessary for the purposes of those proceedings (see order of 14 May 2013, Arrieta D. Gross v OHIM, T‑298/10 DEP, not published, EU:T:2013:237, paragraph 20 and the case-law cited).

13      In the present case, the Court finds it appropriate to reduce the hourly rate of EUR 260 charged by counsel for the intervener to EUR 250, considered reasonable for that type of litigation (see, to that effect, order of 12 January 2016, Meda v OHIM, T‑647/13 DEP, not published, EU:T:2016:15, paragraph 25).

14      Second, regarding the number of hours which ought to be considered objectively necessary for the purposes of the proceedings before the Court, it should be noted that the written part of the procedure consisted in a single exchange of pleadings, the application by the applicant comprising 12 pages and 23 pages of annexes, 20 pages of which represented the contested decision, and that the intervener submitted observations concerning the language of the proceedings (two pages) as well as a response (10 pages excluding the annexes). No hearing was held.

15      In addition, according to the case-law, the knowledge that the advisers of one of the parties already have of the case by reason of having represented it, prior to the application being brought in the main proceedings, before the adjudicatory bodies of OHIM can, to a not insignificant degree, facilitate the work and reduce the time necessary for drafting the response and the other documents submitted before the Court (see order of 23 October 2013, Phonebook of the World v OHIM, T‑589/11 DEP, not published, EU:T:2013:572, paragraph 18 and the case-law cited).

16      In the present case, the documents before the Court show that the law firm representing the intervener before the Court had also represented it before EUIPO. Consequently, taking into account also the limited nature of the proceedings as described in paragraphs 11 and 14 above and the fact that the arguments presented relied to a significant extent, on the one hand, on representations made before EUIPO and, on the other hand, on established case-law principles, the amount of 22 hours and 10 minutes stated in the invoices of counsel for the intervener for the preparation and submission of documents and for ancillary work relating to the main proceedings up to the date of the judgment mentioned in paragraph 1 above exceeds what is necessary for the purpose of the proceedings before the Court.

17      Third, hours relating to the period after the date of the judgment are not recoverable (see order of 26 January 2015, Rügen Fisch v OHIM, T‑201/09 DEP, not published, EU:T:2015:65, paragraph 24 and the case-law cited). It follows that time recorded by counsel for the intervener after the date of the judgment of 29 October 2015 in CREMERIA TOSCANA (T‑256/14, not published, EU:T:2015:814), relating to work involving, in essence, the study of the judgment and its consequences, is not recoverable.

18      In those circumstances, the Court considers that the case objectively required counsel for the intervener to work for 18 hours in connection with the main proceedings in the present case.

19      As regards the costs related to the present proceedings, two hours of work, as stated in the invoice of counsel for the intervener, are not excessive and must be considered recoverable at the hourly rate mentioned in paragraph 13 above.

20      In the light of all the foregoing considerations, the Court considers that the costs recoverable by the intervener will be fairly assessed by taxing their amount at EUR 5 000. That amount takes account of all the circumstances of the case up to the date of this order.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby orders:

The full amount of the costs that Andrea Giuntoli must reimburse to Société des produits Nestlé SA is fixed at EUR 5 000.

Luxembourg, 15 September 2016.

E. Coulon

      G. Berardis

Registrar

      President