ORDER OF THE GENERAL COURT (Third Chamber)

5 September 2012(*)

(Procedure – Taxation of costs)

In Case T‑581/08 DEP,

Perusahaan Otomobil Nasional Sdn Bhd, established in Shah Alam, Selangor Darul Ehsan (Malaysia), represented by C. Kleiner, 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

Proton Motor Fuel Cell GmbH, established in Puchheim (Germany), represented by C. Sedlmeir, lawyer,

APPLICATION for taxation of the costs to be reimbursed by the applicant to the intervener following the judgment of the General Court of 27 September 2011 in Case T‑581/08 Perusahaan Otomobil Nasional v OHIMProton Motor Fuel Cell (PM PROTON MOTOR), not published in the ECR,

THE GENERAL COURT (Third Chamber),

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

Registrar: E. Coulon,

makes the following

Order

1        By application lodged at the Registry of the General Court on 29 December 2008, the applicant, Perusahaan Otomobil Nasional Sdn Bhd, brought an action for annulment of the decision of the First Board of Appeal of OHIM of 9 October 2008 (Case R 1675/2007‑1), concerning opposition proceedings between the applicant and Proton Motor Fuel Cell GmbH.

2        The intervener, Proton Motor Fuel Cell GmbH, has intervened in the dispute and contended that the General Court should dismiss the action and order the applicant to pay the costs.

3        By judgment of 27 September 2011 in Case T‑581/08 Perusahaan Otomobil Nasional v OHIMProton Motor Fuel Cell (PM PROTON MOTOR) (not published in the ECR), the General Court dismissed the action and ordered the applicant to pay the costs, pursuant to Article 87(2) of the Rules of Procedure of the General Court.

4        No settlement having been reached in respect of costs relating to the proceedings before the General Court, the intervener made an application on 23 December 2011, pursuant to Article 92(1) of the Rules of Procedure, for taxation of costs, whereby it requested the General Court to determine the amount of recoverable costs, payable by the applicant, at EUR 7 810. Applying the guiding principles of German fee scales for lawyers, the intervener argues that the procedural costs amount to EUR 4 605, and those in respect of the hearing to EUR 3 205.

5        By document lodged at the Registry of the General Court on 27 February 2012, the applicant submitted its observations on that application. It argues essentially that the costs claimed are excessive and have not been incurred. It submits, moreover, that the calculation made by the intervener does not constitute an appropriate basis for determining the amount of recoverable costs within the meaning of Article 91(b) of the Rules of Procedure. More particularly, it argues that the intervener has not specified how many hours its lawyer spent on the case and that costs in relation to the hearing are inapplicable since no hearing took place. It also disputes the assessment of the value of the dispute, estimating it at EUR 50 000, adding that the sum demanded by the intervener is not justified either by the average degree of difficulty of the case or by its minor importance from the viewpoint of Community law.

 Law

6        According to Article 91(b) of the Rules of Procedure, recoverable costs are ‘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’. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those which were necessary for that purpose (orders of the General Court in Case T-342/99 DEP Airtours v Commission [2004] ECR II-1785, paragraph 13, and of 25 October 2010 in Case T-33/08 DEP Bastos Viegas v OHIM – Fabre Médicament (OPDREX), not published in the ECR, paragraph 7).

7        It is settled case-law that the Community judicature 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 (orders of the General Court, of 19 March 2009 in Joined Cases T‑333/04 and T‑334/04 DEP House of Donuts v OHIM – Panrico (House of donuts), not published in the ECR, paragraph 8, and OPDREX, paragraph 8).

8        It has also consistently been held that, in the absence of Community provisions 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 Community 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 (orders in Airtours v Commission, paragraph 18, and OPDREX, paragraph 9).

9        It is by reference to those factors that the amount of recoverable costs in this case must be assessed.

10      This Court notes, first, that the main action presented, as regards its purpose and nature, no particular complexity. The case concerned opposition proceedings in ordinary trade mark litigation. It should also be noted that the case was of no particular importance in relation to EU law.

11      Second, it must be held that, whilst the case was clearly of a certain economic interest for the intervener, without concrete evidence adduced by the latter, that economic interest cannot be regarded as being of unusual importance.

12      Third, as regards the workload which the proceedings may have caused for the intervener’s lawyer, it should be recalled that the possibility of the EU judicature assessing the value of the work carried out depends on the precision of the information supplied (order in OPDREX, paragraph 13).

13      In this case, the intervener has not supplied information concerning breakdown of the fees for the various services provided, or the hourly rates applied, and neither has it produced evidential documents or fee notes enabling the General Court to determine whether the fees claimed are justified. It has merely indicated the breakdown of fees incurred between procedural costs (EUR 4 605) and the costs of the hearing (EUR 3 205).

14      The fixed assessment of the fees, without stating the working time for each item referred to or the hourly rate applied does not make it possible usefully to assess the amount of work actually carried out. The lack of more detailed information on hourly rates and the time spent on each item makes it especially difficult to verify precisely the costs incurred for the purpose of the proceedings before the General Court and those which were necessary for that purpose, and requires the Court to apply a strict test when assessing the fees recoverable in this case (order of 19 November 2009 in Case T-234/06 Torresan v OHIM – Klosterbrauerei Weissenohe (CANNABIS) [2009] ECR II‑4185, paragraph 16 and case-law cited).

15      Similarly, it should be noted that the actual participation of the intervener in the proceedings before the General Court was limited to the production of a reply of 16 pages accompanied by 2 annexes of 6 pages.

16      Moreover, as the applicant has correctly pointed out, no hearing to justify hearing fees took place in the present case.

17      Having regard to those considerations, and in the absence of precise indications concerning in particular the amount of working time taken by the lawyer or the hourly rate used, the amount of fees charged in respect of the main proceedings must, having regard to the provisions of the Rules of Procedure on recoverable costs, be regarded as excessive.

18      Taking account of all of the above, the lawyers’ fees recoverable by the intervener can be assessed on an equitable basis at EUR 3 000.

19      As regards the other costs which the intervener mentions in its application for taxation of costs amounting to EUR 360.25, it should be noted that the intervener has not specified what those costs refer to. Moreover, in the sum of the recoverable costs demanded in conclusion, those costs are not mentioned. Therefore, the General Court takes the view that no reimbursement in respect of those costs is due in this case.

20      In the light of all the foregoing considerations, the Court considers that all the costs recoverable by the intervener will be fairly assessed by taxing 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 (Third Chamber)

Orders:

The total amount of costs to be reimbursed by Perusahaan Otomobil Nasional Sdn Bhd to Proton Motor Fuel Cell GmbH is fixed at EUR 3 000.

Luxembourg, 5 September 2012.

E. Coulon

      O. Czúcz

Registrar

       President