62012CO0591_EN
Parties
Grounds
Operative part
Parties
In Case C‑591/12 P-DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court, brought on 12 November 2015,
Panrico SA,
established in Esplugues de Llobregat (Spain), represented by D. Pellisé Urquiza, abogado,
applicant,
v
Bimbo SA,
established in Barcelona (Spain), represented by C. Prat, abogado, and R. Ciullo, Barrister,
defendant,
THE COURT (Sixth Chamber),
composed of A. Arabadjiev (Rapporteur), President of the Chamber, J.-C. Bonichot and C.G. Fernlund, Judges,
Advocate General: P. Mengozzi,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Grounds
Order
1. The subject matter of this action is the taxation of the costs incurred by Panrico SA in Case C‑591/12 P.
2. By its appeal, brought on 10 December 2012, under Article 56 of the Statute of the Court of Justice of the European Union, Bimbo SA asked the Court to set aside the judgment of the General Court of 10 October 2012 in Bimbo
v OHIM — Panrico (BIMBO DOUGHNUTS)
(T‑569/10, not published, EU:T:2012:535), whereby that court dismissed its action seeking alteration or, in the alternative, annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 October 2010 (Case R 838/2009-4), concerning opposition proceedings between Panrico and Bimbo.
3. By its judgment of 8 May 2014 in Bimbo
v OHIM (C‑591/12 P, EU:C:2014:305), the Court dismissed the appeal and ordered Bimbo to pay the costs incurred by Panrico.
4. Since no agreement has been reached between Panrico and Bimbo on the amount of the recoverable costs relating to the appeal proceedings, Panrico has made the present application.
Forms of order sought by the parties
5. Panrico requests the Court to tax those costs under Article 145 of the Rules of Procedure of the Court of Justice.
6. In its principal claim, Bimbo contends that that application should be rejected and, in the alternative, that the recoverable costs should be fixed up to an amount not exceeding EUR 6 000.
Arguments of the parties
7. Panrico asks the Court to fix the amount of recoverable costs at EUR 16 000. Those costs are as follows:
– EUR 3 500, corresponding to lawyer’s fees for the examination of communications from the Court of Justice concerning the appeal filed by Bimbo, the drafting of an extensive email to Panrico about that appeal, the examination of the appeal and the drafting of the response to the appeal;
– EUR 250, corresponding to lawyer’s fees for the examination of communications from the Court, review of the background of the case, the drafting of an extensive email and a subsequent email to Panrico about the status of the proceedings, attending a meeting with that company;
– EUR 11 124.38, corresponding to lawyer’s fees for drafting Panrico’s response to the letter of the Court Registry of 30 September 2014, review of the background of the case, preparation for the hearing, attendance at the hearing on 7 November 2013;
– EUR 875.42, for attendance expenses for that hearing, and
– EUR 250, corresponding to lawyer’s fees for examination of the judgment given by the Court and review of the background of the case, the drafting of an email to Panrico to report to it on that judgment.
8. Bimbo considers, in the first place, that the claims of Panrico are inadmissible since they do not state the amount of costs to be recovered.
9. In the second place, Bimbo takes the view that four of the invoices which were annexed to Panrico’s application have not been translated into the language of the proceedings and it contends that, therefore, they cannot be taken into consideration.
10. In the third place, Bimbo notes that the invoices produced mention neither the names of the lawyers concerned, nor the time worked by each of them, nor their hourly rate, even though Panrico’s application mentioned those items. That application should, therefore, be dismissed as being unfounded.
11. In the fourth place, Bimbo maintains that Panrico’s application goes beyond the costs necessarily incurred by that company given that in the present case the subject matter of the dispute did not present any particular complexity. According to Bimbo, as Panrico had the status of intervener, its lawyer already had a thorough knowledge of the case, the number of legal issues to be examined was limited and the relative complexity of the case required neither the participation of two associates nor such a large number of working hours as that which it relies on.
12. In the fifth place, Bimbo contests the amounts of various items of expenditure advanced by Panrico. Bimbo contends in respect of the amounts claimed that:
– EUR 3 500, that only the costs of drafting the response are recoverable and that those costs are excessive;
– EUR 250, that the costs corresponding to that amount are not recoverable;
– EUR 11 124.38, that the costs relating to the preparation for and participation in the hearing are excessive;
– EUR 875.42, that the costs relating to that amount are not recoverable since the corresponding invoices have not been translated into the language of the case, and
– EUR 250, that the costs corresponding to that amount are not recoverable.
Findings of the Court
Admissibility of the application
13. In so far as Bimbo complains that Panrico failed to identify the amount of the costs in respect of which it sought taxation, it must be stated that that argument stems from a misreading of Panrico’s application, that application seeking unequivocally that the Court fix the amount of the recoverable costs at EUR 16 000.
14. As regards the argument alleging infringement of the rules concerning translation into the language of the case, it should be noted that, pursuant to Article 37(2)(c) of the Rules of Procedure, the language of the present case is English and therefore, since the written pleadings and the annexes thereto had to be submitted in that language, documents drafted in another language must be accompanied by an English translation (see, by analogy, judgment of 29 June 2010 in Commission v Luxembourg, C‑526/08, EU:C:2010:379, paragraph 16).
15. In the present case, the application for taxation of costs is drafted entirely in English. Consequently, the sole question arising is whether the documents annexed to the application that are produced not in English but in Spanish must be removed from the file (see, by analogy, judgment in Commission v Luxembourg, C‑526/08, EU:C:2010:379, point 18).
16. In that respect, it must be pointed out that, under Article 38(3) of the Rules of Procedure, in the case of lengthy documents, translations may be confined to extracts. Furthermore, the Court may, of its own motion or at the request of a party, at any time call for a complete or fuller translation.
17. However, as free English translations of the relevant passages in the four annexes in question have been supplied by Panrico in its application, as is, moreover, acknowledged by Bimbo, and the latter has not made a request for a more complete translation of the documents concerned, it is not necessary to remove the annexes at issue from the file.
Recoverable costs
18. Under Article 144(b) of the Rules of Procedure, applicable pursuant to Article 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.
19. As is apparent from the wording of that provision, 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 expenses are limited, first, to expenses incurred for the purposes of the proceedings before the Court and, second, to those which are essential for that purpose (order of 3 December 2014 in Qwatchme
v Kastenholz, C‑435/13 P-DEP, not published, EU:C:2014:2421, paragraph 9 and the case-law cited).
20. According to the Court’s settled case-law, the Court is 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 (see order of 12 November 2015 in AFT Pharmaceuticals
v Mundipharma, C‑669/13 P-DEP, not published, EU:C:2015:758, paragraph 10 and the case-law cited).
21. In the first place, in so far as Bimbo questions whether the fees for which reimbursement is requested are genuine, it should be pointed out that the mere fact that Panrico’s legal advisers, who it is accepted represented the latter before the Court in the appeal proceedings, have not specified, in the invoices produced, either the name of the lawyers concerned, the time worked by each of them or the hourly rate charged, even though Panrico’s claim mentions those items, does not justify the conclusion that those fees were not genuinely incurred for the purposes of recoverable costs.
22. In any event, that situation is not such as to affect the essential nature and, therefore, the recoverability of those costs since that does not in any way depend solely on assessments made by the party claiming them.
23. In the second place, it should be recalled that, in the absence of any provisions of EU law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject matter and the nature of the dispute, its importance from the point of view of EU law, and 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 presented for the parties (see, in particular, order of 7 June 2012 in France Télévisions v TF1, C‑451/10 P-DEP, not published, EU:C:2012:323, paragraph 20).
24. In the present case, it should first be noted, with regard to the subject matter and the nature of the dispute, that the case before the Court is an appeal which is, by nature, limited to questions of law and does not concern findings as to the facts of the dispute or the assessment of those facts. Furthermore, before the lodging of that appeal, the dispute arising from the application for a declaration of invalidity brought by Bimbo had already been brought before EUIPO’s Cancellation Division, then before one of its Boards of Appeal and, lastly, before the General Court.
25. In the second place, as regards the importance of the dispute from the point of view of EU law and the difficulty of the questions considered in the appeal proceedings, it must be stated that in support of that appeal Bimbo raised a single plea in law divided into two parts, which did not raise any complex legal issues.
26. In the third place, concerning the economic interests concerned, it should be noted that, having regard to the significance of trade marks in business, it was in Panrico’s interest to seek on appeal the confirmation of the judgment referred to in paragraph 2 of the present order, in which the General Court declared the application for alteration of the decision referred to in paragraph 2 inadmissible and rejected the pleas in law for the annulment of that decision.
27. In the fourth place, concerning the amount of work undertaken by Panrico’s legal advisers, it must be observed that Panrico has included, in the calculation of the costs whose recovery it is claiming, the fee notes concerning time worked on the case by two legal advisers.
28. It should be noted, in that regard 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 Article 144(b) of the Rules of Procedure (orders of 3 September 2009 in Industrias Químicas del Vallés
v Commission, C‑326/05 P-DEP, not published, EU:C:2009:497, paragraph 47, and of 16 May 2013 in Deoleo
v Aceites del Sur-Coosur, C‑498/07 P-DEP, not published, EU:C:2013:302, paragraph 27).
29. It follows that, when fixing the amount of the recoverable costs, the Court should take account of the total number of hours worked that may be considered objectively necessary for the purposes of the proceedings, irrespective of the number of lawyers who carried out that work (orders of 3 September 2009 in Industrias Químicas del Vallés
v Commission, C‑326/05 P-DEP, not published, EU:C:2009:497, paragraph 48, and of 16 May 2013 in Deoleo
v Aceites del Sur-Coosur, C‑498/07 P-DEP, not published, EU:C:2013:302, paragraph 28).
30. In that regard it must be pointed out, first, that the drawing up by the legal advisers of Panrico of the response in the appeal resulting in the judgment referred to in paragraph 3 of the present order involved the consideration of a limited number of legal issues.
31.
Next, it should be noted that Panrico’s legal advisers already had detailed knowledge of the case, given that they had represented that company before EUIPO and in the proceedings at first instance.
32. Furthermore, in general, the intervener’s part in the proceedings is made substantially easier by the work done by the party in support of which it has intervened (order of 12 November 2015 in AFT Pharmaceuticals
v Mundipharma, C‑669/13 P-DEP, not published, EU:C:2015:758, paragraph 18 and the case-law cited).
33. Whereas it appears, in the light of the above findings, that drafting the response in the appeal proceedings did not entail a particularly heavy workload, it must nonetheless be held that, given the financial interests referred to in paragraph 26 of the present order and the arguments presented by Bimbo in its appeal, Panrico’s legal advisers were reasonably entitled to claim that it was necessary to develop a detailed argument on the merits of the case.
34. Finally, it should be noted that, as a hearing took place, those legal advisers had to make submissions before the Court. It follows that the legal advisers of Panrico could legitimately take the view that it was necessary to prepare for that hearing and incurred attendance costs which must be considered to be reasonable.
35. In view of all the foregoing, the costs recoverable by Panrico from Bimbo in Case C‑591/12 P may be fairly assessed at a total amount of EUR 4 900.
Operative part
On those grounds, the Court (Sixth Chamber) hereby orders:
The total costs to be reimbursed by Bimbo SA to Panrico SA in Case C‑591/12 P are fixed at EUR 4 900.