ORDER OF THE GENERAL COURT (Third Chamber)

14 May 2013(*)

(Procedure – Taxation of costs)

In Case T‑298/10 DEP,

Christina Arrieta D. Gross, residing in Hamburg (Germany), represented by
J.-P. Ewert and A. Hanewinkel, lawyers,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant,

the interveners before the General Court being

International Biocentric Foundation Ltd, established in Dublin (Ireland),

Gabriela Cedilia Toro Acuña, residing in Santiago (Chili),

Hilda Pilar Toro Acuña, residing in Temuco (Chili),

Rolando Patricio Toro Acuña, residing in Macaé (Brazil),

María Verónica Toro Acuña, residing in Dique Lujan (Republic of Argentina),

Ricardo Marcela Toro Durán, residing in Bolland (Belgium),

German Toro Gonzalez, residing in Santiago,

Claudia Danae Toro Sanchez, residing in Santiago,

Rodrigo Paulo Toro Sanchez, residing in Santiago,

Mariela Paula Toro Sanchez, residing in Santiago,

Viviana Luz Toro Matuk, residing in Milan (Italy),

Morgana Fonteles Toro, residing in Palermo (Republic of Argentina),

Anna Laura Toro Sant’ana, residing in Santiago,

Joana Castoldi Toro Araneda, residing in Canoas (Brazil),

Claudete Sant’ana, residing in Santiago,

represented by B. Vanbrabant and Y. Van Couter, lawyers,

who have been allowed to replace Rolando Mario Toro Araneda, the other party to the proceedings before the Board of Appeal of OHIM,

APPLICATION for taxation of the costs to be recovered from the applicant by the interveners following the judgment of the General Court of 8 March 2012 in Case T‑298/10 Arrieta D. Gross v OHIM – International Biocentric Foundation (BIODANZA), not published in the ECR,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts, procedure and forms of order sought

1        On 30 September 2005, Rolando Mario Toro Araneda filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). On 11 September 2006, the applicant, Christina Arrieta D. Gross, filed a notice of opposition against registration of the mark applied for. On 30 July 2009, the Opposition Division allowed the opposition in part and rejected the application for registration of certain goods and services referred to in the application for registration. Following an appeal by Mr Toro Araneda, the Second Board of Appeal of OHIM, by decision of 13 April 2010 (Case R 1149/2009‑2), annulled the Opposition Division’s decision and dismissed the opposition in its entirety, holding, inter alia, that the evidence of use of the earlier trade mark produced by the applicant was not sufficient to prove the genuine use of that trade mark.

2        By application lodged at the Registry of the General Court on 7 July 2010, the applicant brought an action for annulment of the decision of the Second Board of Appeal of OHIM cited in the previous paragraph.

3        On 15 November 2010, the International Biocentric Foundation Ltd, the new proprietor of the Community trade mark application after the death, on 16 February 2010, of Mr Toro Araneda, as well as the latter’s heirs, Gabriela Cedilia Toro Acuña, Hilda Pilar Toro Acuña, Rolando Patricio Toro Acuña, Maria Verónica Toro Acuña, Ricardo Marcela Toro Durán, German Toro Gonzalez, Claudia Danae Toro Sanchez, Rodrigo Paulo Toro Sanchez, Mariela Paula Toro Sanchez, Viviana Luz Toro Matuk, Morgana Fonteles Toro, Anna Laura Toro Sant’ana, Joana Castoldi Toro Araneda and Claudete Sant’ana, lodged a response at the Registry of the Court.

4        By a document lodged at the Registry of the Court on 14 January 2011, the applicant raised a plea of inadmissibility in respect of that response.

5        In the context of measures of organisation of procedure, the Court called, first, on OHIM and, second, on the International Biocentric Foundation Ltd and the heirs of Mr Toro Araneda to present their observations on the plea of inadmissibility in respect of the response.

6        On 29 March 2011, the International Biocentric Foundation Ltd and the heirs of Mr Toro Araneda lodged their observations on that plea of inadmissibility.

7        By judgment of 8 March 2012 in Case T‑298/10 Arrieta D. Gross v OHIM – International Biocentric Foundation (BIODANZA), not published in the ECR (‘the judgment of the General Court’), the International Biocentric Foundation Ltd and the heirs of Mr Toro Araneda were granted leave to intervene before the General Court (‘the interveners’). By that judgment, the General Court dismissed the action and ordered the applicant to pay the costs.

8        By letters of 8 June and 13 July 2012, the interveners requested the applicant to pay the amount of their costs, estimated at EUR 25 614.58. The interveners contend that that sum corresponds to their lawyers’ fees. The invoices relating to those fees were appended to those letters.

9        By letter of 16 August 2012, the applicant, first, contested in its entirety one of the invoices appended to the aforementioned letters, dated 8 June 2012, in the amount of EUR 9 840.72, and, second, requested that the interveners provide her with detailed information on the hours of work effected by their lawyers corresponding to the expenses to which the other invoices relate.

10      By letter of 28 August 2012, the interveners provided the applicant, first, with explanations regarding the expenses to which the invoice of 8 June 2012 relates and, second, with a breakdown of their lawyers’ fees specifying the hours of work and the services rendered. Moreover, the interveners reiterated their request for payment of their costs, namely the sum of EUR 25 614.58, and stated that, in the absence of payment of that sum or of an alternative proposal by the applicant within 15 days, they planned to bring an application for taxation of costs before the General Court.

11      By application lodged at the Registry of the Court on 7 November 2012, the interveners lodged, pursuant to Article 92(1) of the Rules of Procedure of the General Court, an application for taxation of costs by which they requested the Court to fix the amount of the recoverable costs, for payment of which the applicant was liable, at EUR 25 614.58.

12      The applicant submitted her observations on that application by document lodged at the Registry of the Court on 25 January 2013. The applicant claims that the Court should dismiss that application. In the alternative, she claims that the Court should fix the recoverable costs at an amount not exceeding EUR 5 000.

 Law

 Arguments of the parties

13      The interveners request the Court to fix the amount of their recoverable costs at EUR 25 614.58. They submit that those costs correspond to their lawyer’s fees. In support of their request, the interveners produced the invoices corresponding to the amount claimed as well as a detailed breakdown of those fees.

14      The applicant contests, in particular, the amount to which the invoice of 8 June 2012 relates, and claims that that amount does not correspond to expenses actually incurred but constitutes a success fee which cannot be considered a recoverable cost. The applicant submits that the hours of work by the interveners’ lawyers corresponding to the amount of that invoice were added retroactively to the breakdown of fees in order to conceal the fact that that invoice covered a non-recoverable success fee. Moreover, in the applicant’s submission, neither that invoice nor in fact any of the other invoices submitted by the interveners has ever been paid by the interveners.

 Findings of the Court

15      As provided in 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, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.

16      According to 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 regarded as recoverable costs. It follows from that provision that the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those which are necessary for that purpose (see order of 25 January 2007 in Case T‑214/04 DEP Royal County of Berkshire Polo Club v OHIM – Polo/Lauren (ROYAL COUNTY OF BERKSHIRE POLO CLUB), not published in the ECR, paragraph 13 and the case-law cited).

17      It should be recalled that, according to settled 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 to be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the General 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 in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 17 and the case-law cited).

18      It is also settled case-law that, in the absence of provisions laying down fee-scales under European Union law, the General 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 European Union 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 (order of 2 December 2010 in Case T‑270/06 DEP Lego Juris v OHIM – Mega Brands (Red Lego brick), not published in the ECR, paragraph 29 and the case-law cited).

19      In assessing the extent of the work generated by the judicial proceedings, the primary consideration of the Court is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question. In that regard, the ability of the European Union Courts to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Airtours v Commission, paragraph 17 above, paragraph 30 and the case-law cited).

20      Lastly, according to settled case‑law, it is necessary to consider the hourly rate which the interveners seek to have applied, since remuneration at a high hourly rate is appropriate only for the services of professionals who are capable of working efficiently and rapidly, the quid pro quo being that, in such a case, an assessment must be made – which must be rigorous – of the total number of hours of work necessary for the purposes of the proceedings concerned (see order of 22 March 2010 in Case T‑93/06 DEP Mülhens v OHIM – Spa Monopole (MINERAL SPA), not published in the ECR, paragraph 22 and the case-law cited).

21      It is in the light of those considerations that the Court must assess the amount of the recoverable costs in the present case.

22      In the first place, the Court observes that the case in the main proceedings was not, as regards its purpose and nature, of any particular complexity. The case concerned an opposition filed by the applicant against registration of the Community trade mark applied for by Mr Toro Araneda and related, in particular, to the issue whether the applicant had established proof of use of the earlier mark. The case also concerned the admissibility of the interveners’ response. Since neither of those two aspects concerns new questions of law or complex questions of fact, the case in the main proceedings must be considered to be of average complexity. Moreover, that case was not of any particular importance in the light of European Union law.

23      In the second place, the Court finds that, although admittedly the case had a financial interest for the interveners, that interest cannot be considered, in the total absence of any specific evidence adduced by them in that regard, to be of unusual importance.

24      In the third place, as regards the extent of the work generated by the judicial proceedings for the interveners’ lawyers, it must be observed that, in the procedure before the General Court, the interveners lodged a response (20 pages), observations on the plea of inadmissibility raised by the applicant (one page and four lines), a request to have the written procedure reopened and the oral procedure opened (one and half pages) and a request for withdrawal of the request to have the oral procedure opened (less than one page).

25      The breakdown of the fees of the interveners’ lawyers submitted by the interveners before the Court specifies the hours of work and the services rendered by those lawyers. It is apparent from that breakdown that the interveners’ lawyers devoted more than 86 hours to dealing with the case in the main proceedings for a total amount of EUR 25 615. It follows that the average hourly rate charged by the interveners’ lawyers is approximately EUR 297.

26      The Court considers that the average hourly rate charged by the lawyers is high but does not appear to be unreasonable.

27      However, without it being necessary to adjudicate on the applicant’s arguments summarised in paragraph 14 above, the number of hours devoted to dealing with the case in the main proceedings appears to be too high. It is apparent from the case‑law (see paragraph 19 above) that, as regards the extent of the work, the Courts of the European Union assess the number of hours objectively necessary for the purpose of the proceedings before the Court. In the present case, having regard, first, to the nature and extent of the pleadings and procedural documents produced by the interveners and, second, to the fact that, according to the case‑law, remuneration at a high hourly rate must be counterbalanced by a rigorous assessment of the total number of hours of work devoted by the lawyers to dealing with the case (see paragraph 20 above), the Court considers that it is appropriate to recognise that, in total, 40 hours of work was necessary for the purpose of the proceedings before the Court.

28      In the light of all the foregoing, the Court considers that the costs recoverable by the interveners in respect of the procedure before the Court will be fairly assessed by taxing their amount at EUR 13 000, which takes account of all the circumstances of the case up to the date of this order.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby orders:

The total amount to be reimbursed by Christina Arrieta D. Gross to International Biocentric Foundation Ltd, Gabriela Cedilia Toro Acuña, Hilda Pilar Toro Acuña, Rolando Patricio Toro Acuña, Maria Verónica Toro Acuña, Ricardo Marcela Toro Durán, German Toro Gonzalez, Claudia Danae Toro Sanchez, Rodrigo Paulo Toro Sanchez, Mariela Paula Toro Sanchez, Viviana Luz Toro Matuk, Morgana Fonteles Toro, Anna Laura Toro Sant’ana, Joana Castoldi Toro Araneda and Claudete Sant’ana is fixed at EUR 13 000.

Luxembourg, 14 May 2013.

E.  Coulon

      O. Czúcz

Registrar

      President