Corte di giustizia UE n. 260/2016

62014CO0035(01)_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑35/14 P-DEP, APPLICATION for taxation of recoverable costs on the basis of [OSCURATO:PERSONA] 145 of the Rules of Procedure of the [OSCURATO:PERSONA], brought on 2 October 2015, [OSCURATO:PERSONA] SL, established in Sarriguren (Spain), represented by E. [OSCURATO:PERSONA], abogado, applicant, v [OSCURATO:PERSONA] GmbH, established in Aurich (Germany), represented by R. Böhm, Rechtsanwalt, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of M. Ilešič (Rapporteur), President of the [OSCURATO:PERSONA], C. Toader, A. Rosas, A. Prechal and E. Jarašiūnas, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: Y. Bot, Registrar: A. [OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1. The subject-matter of this action is the taxation of the costs incurred by [OSCURATO:PERSONA] SL (‘[OSCURATO:PERSONA]’) in [OSCURATO:PERSONA] C‑35/14 P. 2. By its appeal brought on 22 January 2014, under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH (‘[OSCURATO:PERSONA]’) asked the [OSCURATO:PERSONA] of Justice to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 November 2013 in [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] (Blended shades of green) (T‑245/12, EU:T:2013:588), whereby the [OSCURATO:PERSONA] annulled the decision of the [OSCURATO:PERSONA] of Appeal of the Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM) of 1 March 2012 ([OSCURATO:PERSONA] R 260/2011-1) concerning invalidity proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. 3. By its order in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑35/14 P, EU:C:2015:158), the [OSCURATO:PERSONA] dismissed that appeal as manifestly inadmissible and ordered [OSCURATO:PERSONA] to bear its own costs and to pay the costs incurred by [OSCURATO:PERSONA]. 4. Since no agreement has been reached between [OSCURATO:PERSONA] and [OSCURATO:PERSONA] on the amount of the recoverable costs relating to those proceedings, [OSCURATO:PERSONA] has made the present application. Arguments of the parties 5. [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to fix the amount of the costs to be recovered at EUR 12 200. Payment of that amount was demanded from [OSCURATO:PERSONA] on 22 July 2015. 6. That amount corresponded to the total fee invoices issued on the same date by the law firm representing [OSCURATO:PERSONA]. Those invoices, it is claimed, represent 26 working hours for a partner and 8 working hours for an associate lawyer, at hourly rates of EUR 380 and EUR 290 respectively. The fees charged relate, according to the application, to the analysis of [OSCURATO:PERSONA]’s appeal and examination of the applicable case-law, preparation and filing of the response, analysis of the response lodged by OHIM and of the reply, preparation and filing of the rejoinder and the correspondence exchanged in that regard. 7. [OSCURATO:PERSONA] contests the amount of EUR 12 200 claimed by [OSCURATO:PERSONA]. 8. It argues, in the first place, that, neither in his request for payment of 22 July 2015 nor in his application for taxation of costs, did [OSCURATO:PERSONA]’s legal adviser provide a copy of the invoice that was actually sent to [OSCURATO:PERSONA], so that neither the [OSCURATO:PERSONA] nor [OSCURATO:PERSONA] are able to verify whether that invoice has, in fact, the same content as the one sent by [OSCURATO:PERSONA]’s legal adviser to [OSCURATO:PERSONA] on 22 July 2015 for the purposes of obtaining reimbursement. Nor is it possible to determine whether the number of hours invoiced for the services of the partner or associate lawyer is genuine. 9. In the second place, since the appeal was rejected on the basis of procedural errors, the [OSCURATO:PERSONA] did not rule on the substance of the dispute, demonstrating that the case is not important from the perspective of EU law. 10. In the third place, neither national law, such as the German law on lawyers’ fees, nor EU law guarantees that the costs of representation will be reimbursed in full. 11. Finally, in the fourth place, most of the hours were invoiced at the hourly rate of the firm’s partner, not that of the associate lawyer. However, most of the items on the invoice relate to sending e-mails to the client and general correspondence. The amount claimed, therefore, is excessive. Findings of the [OSCURATO:PERSONA] 12. [OSCURATO:PERSONA] 144(b) of the Rules of Procedure of the [OSCURATO:PERSONA], applicable, in accordance with [OSCURATO:PERSONA] 184(1) of those rules, to procedures on appeal, ‘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 to be regarded as recoverable costs. 13. As is apparent from its wording, the remuneration of a lawyer is one of the expenses necessarily incurred within the meaning of that provision. It also follows from that wording that recoverable costs are limited, firstly, to expenses incurred for the purposes of the proceedings before the [OSCURATO:PERSONA] and, secondly, to expenses necessarily incurred for such purposes (order in Qwatchme v Kastenholz , C‑435/13 P-DEP, EU:C:2014:2421, paragraph 9 and the case-law cited). 14. According to the settled case-law of the [OSCURATO:PERSONA], the Courts of the [OSCURATO:PERSONA] are authorised, not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs (order in AFT Pharmaceuticals v Mundipharma , C‑669/13 P-DEP, EU:C:2015:758, paragraph 10 and the case-law cited). 15. In the first place, in so far as [OSCURATO:PERSONA] questions whether the fees for which reimbursement is requested are genuine, it should be pointed out that the mere fact that [OSCURATO:PERSONA]’s legal adviser, who it is accepted represented the latter before the [OSCURATO:PERSONA] in the appeal proceedings in question, did not provide [OSCURATO:PERSONA] with a copy of the invoice sent to his client does not mean that the expenses set out in a detailed invoice sent to [OSCURATO:PERSONA] on 22 July 2015, and for which reimbursement is requested as recoverable expenses, are not accurate and genuine, since the question whether those expenses are essential and, therefore, recoverable does not, in any event, depend solely on assessments made by the party claiming them, as will be noted below. 16. In the second place, in so far as [OSCURATO:PERSONA] refers to national legislation concerning expenses, namely the German law on lawyers’ fees, it should be pointed out that, in ruling on an application for taxation of costs, the Courts of the [OSCURATO:PERSONA] do not have to take into consideration national legislation concerning the fixing of lawyers’ fees (see, to that effect, the order in AFT Pharmaceuticals v Mundipharma , C‑669/13 P-DEP, EU:C:2015:758, paragraph 11 and the case-law cited). 17. In the third place, it must be pointed out that, in the absence of any provisions of EU law relating to fee scales or the necessary working time, the Courts of the [OSCURATO:PERSONA] must make an unfettered assessment of the facts of the case, taking account of the purpose and the nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work which the case generated for the agents or lawyers involved and the financial interest which the parties had in the proceedings (see, in particular, the order in Deoleo v Aceites del Sur-Coosur , C‑498/07 P-DEP, EU:C:2013:302, paragraph 20). 18. In the present case, first, as regards the purpose and nature of the dispute, it should be noted that the case was referred to the [OSCURATO:PERSONA] in the context of appeal proceedings which are, by nature, limited to questions of law and do not concern themselves with findings as to the facts, or assessment of the facts. Furthermore, prior to that appeal, the dispute arising from an application for a declaration of invalidity lodged by [OSCURATO:PERSONA] had already been brought before the [OSCURATO:PERSONA] of OHIM and then before a [OSCURATO:PERSONA] of Appeal of that Office and, finally, before the [OSCURATO:PERSONA]. 19. Secondly, with regard to the significance of the dispute from the point of view of EU law and the difficulties of the questions examined in the appeal proceedings, it should be noted that, in support of those proceedings, [OSCURATO:PERSONA] relied on two grounds of appeal which did not raise complex questions of law. Moreover, the [OSCURATO:PERSONA], by reasoned order adopted on the basis of [OSCURATO:PERSONA] 181 of its Rules of Procedure, dismissed that appeal as manifestly inadmissible. 20. Thirdly, as regards the financial interests concerned, it should be pointed out that, in the light of the importance of trade marks in trade, [OSCURATO:PERSONA] certainly had an interest in obtaining the confirmation, on appeal, of the judgment of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] (Blended shades of green) (T‑245/12, EU:T:2013:588), whereby the [OSCURATO:PERSONA] annulled the decision of the [OSCURATO:PERSONA] of Appeal of OHIM referred to in paragraph 2 of the present order. 21. Fourthly, as regards the amount of work done by [OSCURATO:PERSONA]’s legal advisers, it should be noted that the latter included, in the calculation of the recoverable costs, fees relating to the hours of work of two lawyers. 22. In that regard, it should be noted that, while, in principle, the remuneration of only one agent, adviser or lawyer is recoverable, it is possible that, depending on the individual circumstances and, most importantly, the complexity of each case, the fees of a number of lawyers may be considered ‘necessary expenses’ under [OSCURATO:PERSONA] 144(b) of the Rules of Procedure (orders in [OSCURATO:PERSONA] del Vallés v Commission , C‑326/05 P-DEP, EU:C:2009:497, paragraph 47 and Deoleo v Aceites del Sur-Coosur , C‑498/07 P-DEP, EU:C:2013:302, paragraph 27). 23. It follows that, when fixing the amount of the recoverable costs, it is appropriate to take account of the total number of hours’ work that may be considered objectively necessary for the purposes of the proceedings, irrespective of the number of lawyers who carried out that work (orders in [OSCURATO:PERSONA] del Vallés v Commission , C‑326/05 P-DEP, EU:C:2009:497, paragraph 48 and Deoleo v Aceites del Sur-Coosur , C‑498/07 P-DEP, EU:C:2013:302, paragraph 28). 24. In that regard, it should be noted, first, that the preparation by [OSCURATO:PERSONA]’s legal advisers of the reply and rejoinder in the appeal giving rise to the order in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑35/14 P, EU:C:2015:158) involved the examination of a limited number of questions of law. It should also be noted that [OSCURATO:PERSONA]’s legal advisers already had a thorough knowledge of the case as they had represented that company in the proceedings at first instance. Finally, as there was no hearing, those advisers did not have to present oral argument before the [OSCURATO:PERSONA]. 25. Whereas it appears, in the light of the above findings, that drafting the written pleadings referred to in the previous paragraph did not entail a particularly heavy workload, it must nonetheless be held, given the financial interests referred to in paragraph 20 of the present order and the arguments presented by [OSCURATO:PERSONA] in its appeal, that, notwithstanding the plea that the appeal raised by [OSCURATO:PERSONA] in its reply was inadmissible, the latter’s legal advisers were reasonably entitled to claim that it was necessary to develop a detailed argument on the merits of the case. 26. In view of all the foregoing, the costs recoverable by [OSCURATO:PERSONA] from [OSCURATO:PERSONA] in [OSCURATO:PERSONA] C‑35/14 P may be fairly assessed at EUR 6 000. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: The total amount of costs to be reimbursed by [OSCURATO:PERSONA] GmbH to [OSCURATO:PERSONA] SL in [OSCURATO:PERSONA] C‑35/14 P is fixed at EUR 6 000. Luxembourg, 25 February 2016.