Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (Fifth Chamber)

27 September 2018 (*)

(Procedure — Taxation of costs)

In Case T‑140/15 DEP,

Aurora Srl, established in Finale Emilia (Italy), represented by L.-B. Buchman, lawyer,

applicant,

v

Community Plant Variety Office (CPVO), represented by F. Mattina and M. Ekvad, acting as Agents,

defendant,

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

SESVanderhave NV, established in Tirlemont (Belgium),

APPLICATION for taxation of costs following the judgment of 23 November 2017, Aurora v CPVO — SESVanderhave (M 02205) (T‑140/15, EU:T:2017:830),

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias, President, A. Dittrich and P.G. Xuereb (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts, procedure and forms of order sought

1        By decision of 18 April 2005, the Community Plant Variety Office (CPVO) granted, pursuant to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1), Community protection to the sugar beet variety M 02205, the rights to which belonged to the intervener in the main proceedings, SESVanderhave NV.

2        On 28 August 2012, the applicant, Aurora Srl, submitted a request for a declaration of invalidity, pursuant to Article 20 of Regulation No 2100/94, against the Community plant variety right granted to the intervener. By Decision NN 010 of 23 September 2013, the CPVO dismissed that request.

3        Following the appeal brought by the applicant, the Board of Appeal of the CPVO, by Decision A 010/2013 of 26 November 2014 (‘the contested decision’), dismissed that appeal as unfounded.

4        By application lodged at the Registry of the Court on 24 March 2015, the applicant brought an action challenging that decision. In support of its action it put forward two heads of claim seeking, first, annulment of the contested decision and, second, alteration of that decision. In the context of its first head of claim, the applicant submitted, in essence, three pleas alleging, first, that the Board of Appeal had erred in taking the view that the condition of ‘distinctness’ under Articles 6 and 7 of Regulation No 2100/94 had been satisfied in the present case, second, infringement by the Board of Appeal, on the one hand, of the principles of legal certainty and the protection of legitimate expectations and, on the other hand, of Article 87(4) of Regulation No 2100/94, and, third, infringement of the principle of transparency and of the right of access to documents. In its second head of claim, the applicant requested that the Court alter the contested decision of the Board of Appeal and, consequently, declare null and void the Community plant variety rights which had been granted to the intervener for the sugar beet variety M 02205.

5        By judgment of 23 November 2017, Aurora v CPVO — SESVanderhave (M 02205) (T‑140/15, EU:T:2017:830), the Court annulled the contested decision and ordered the CPVO to bear its own costs and to pay those incurred by the applicant.

6        By letter of 5 December 2017, the applicant requested the CPVO to pay it the amount of its costs, which it calculated to be EUR 98 227.40.

7        On 13 December 2017, the CPVO sent an email to the applicant, by which it contested the amount claimed, while making a counter-offer of EUR 30 000.

8        In the absence of an agreement between the two parties on the amount of the recoverable costs, the applicant submitted, by document lodged at the Court on 19 December 2017, an application for taxation of costs, pursuant to Article 170(1) of the Court’s Rules of Procedure. It requested the Court to order the CPVO to pay the sum of EUR 98 227.40 (exclusive of VAT).

9        By document lodged at the Court Registry on 4 May 2018, the CPVO submitted its observations on that application. It contends that the amount claimed is excessive and defers to the Court’s discretion in regard to setting the amount of costs to be reimbursed.

 Law

 Arguments of the parties

10      The applicant produces, in an annex to the application, a copy of the following 17 invoices, primarily including the lawyer’s fees and expenses that had been charged in relation to the proceedings in Case T‑140/15:

–        invoice No 4010739 of 31 December 2014 — period from 1.12.2014 to 31.12.2014 (EUR 1 540)

–        invoice No 4011220 of 20 February 2015 — period from 1.1.2015 to 13.2.2015 (EUR 2 282.50)

–        invoice No 4011458 of 15 March 2015 — period from 17.2.2015 to 28.2.2015 (EUR 3 344)

–        invoice No 4011501 of 31 March 2015 — period from 1.3.2015 to 31.3.2015 (EUR 19 543)

–        invoice No 4011758 of 30 April 2015 — period from 1.4.2015 to 30.4.2015 (EUR 643.50)

–        invoice No 4012678 of 31 July 2015 — period from 1.5.2015 to 31.7.2015 (EUR 3 671.50)

–        invoice No 4012923 of 31 August 2015 — period from 1.8.2015 to 31.8.2015 (EUR 10 692)

–        invoice No 4013170 of 30 September 2015 — period from 1.09.2015 to 30.9.2015 (EUR 17 317.90)

–        invoice No 4013457 of 31 October 2015 — period from 1.10.2015 to 31.10.2015 (EUR 16 732.50)

–        invoice No 4014007 of 31 December 2015 — period from 1.11.2015 to 31.12.2015 (EUR 1 747.50)

–        invoice No 4014327 of 31 January 2016 — period from 1.1.2016 to 31.1.2016 (EUR 6 209.50)

–        invoice No 40016835 of 31 October 2016 — period from 1.2.2016 to 31.10.2016 (EUR 476)

–        invoice No 40017352 of 31 December 2016 — period from 1.2.2016 to 31.10.2016 (EUR 4 809.50)

–        invoice No 40017638 of 31 January 2017 — period from 1.1.2017 to 31.1.2017 (EUR 5 065.50)

–        invoice No 40018146 of 31 March 2017 — period from 1.2.2017 to 31.3.2017 (EUR 2 225)

–        invoice No 40019412 of 31 July 2017 — period from 1.7.2017 to 31.7.2017 (EUR 630)

–        invoice No 40020545 of 30 November 2017 — period from 1.8.2017 to 30.11.2017 (EUR 1 297.50).

11      In addition to the data mentioned above, those invoices also contain details of the names of the four lawyers who worked on that case, the number of hours which each of them spent during different work sessions, and their respective hourly rates and the amount charged for each work session concerned. Thus, it is stated, inter alia, that the lawyer appointed by the applicant (‘the appointed lawyer’) was a partner in a law firm and that he had worked a total of 122.30 hours, at an hourly rate of EUR 495, which was increased to EUR 525 in regard to the services charged in the last three invoices. According to the documents in question, the other three lawyers worked for a total of 184.90 hours, at hourly rates of between EUR 80 and EUR 230.

12      Furthermore, invoices No 4013170 and No 4013457 also contain references to travel expenses corresponding respectively to amounts of EUR 1 111.40 and EUR 36.

13      The CPVO disputes the amount claimed, which it regards, in essence, as excessive, having regard to the circumstances of the case. In this connection, it puts forward several arguments, claiming, first, that the case which gave rise to the present proceedings for taxation of costs did not raise any particular difficulty, or any new or complex point of law, with the result that it was not of particular significance as regards EU law. Second, according to the CPVO, in the first place, invoice No 4010739 and part of invoice No 4011220 should be excluded from the amount claimed, in so far as the payments indicated therein correspond, in part, to periods prior to that in which the contested decision was notified to the applicant and, in the second place, the amounts corresponding to travel expenses referred to in paragraph 12 above should be excluded, in so far as the applicant has not provided documentary evidence for them and in so far as, in any event, they were charged in invoices dated 2015, whereas the oral hearing before the Court did not take place until June 2017. Third, the CPVO challenges both the number of hours worked by the applicant’s lawyers and the hourly rates charged by them. As regards the first point, the CPVO claims, in essence, that the number of hours worked in this case was excessive, with regard to, inter alia, the fact that the appointed lawyer, who represented the applicant before the CPVO and before the Board of Appeal, had a good knowledge of the case file and that the applicant’s written submissions were not particularly long and that, furthermore, the content of the application reproduced a large part of the statements which had already been submitted before the Board of Appeal. As regards the respective hourly rates charged by the applicant’s lawyers and, in particular, by the appointed lawyer, the CPVO claims, in essence, that they are excessive, with regard to, inter alia, the rates which the EU Courts have considered to be reasonable in other proceedings relating to intellectual property law. Fourth, the CPVO complains that the applicant did not provide it with sufficiently precise information concerning the expenses and fees incurred by the four lawyers involved in that case, with the result that it could not automatically assume that there had been no duplication of tasks between them. Additionally, the CPVO submits, with regard to, inter alia, the fact that no complex question was raised in this case, that the principle laid down in the case-law that only the remuneration of a single lawyer is recoverable should apply to the present proceedings for taxation of costs. Finally, the CPVO contends, as regards the question relating to the applicant’s economic interest, that, since it had not raised any arguments in that respect, nor provided evidence as to the consequences of the judgment in the main proceedings on its turnover, that criterion cannot serve as a ground to justify the high amount claimed by the applicant.

 The application for taxation of costs

14      Under Article 170(1) and (3) of the Rules of Procedure of the General Court, if there is a dispute concerning the costs to be recovered, the party concerned may apply to the Court to determine the dispute. After giving the party concerned by the application an opportunity to submit its observations, the Court must give its decision by way of an order from which no appeal may lie.

15      Under 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 purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (see, to that effect, order of 6 October 2009, Federación de Cooperativas Agrarias de la Comunidad Valenciana v CPVO — Nador Cott Protection (Nadorcott), T‑95/06 DEP, not published, EU:T:2009:389, paragraph 42 and the case-law cited).

16      In that regard, it is necessary to recall that, by the term ‘proceedings’, Article 140 of the Rules of Procedure refers only to the proceedings before the Court, to the exclusion of the stage which precedes them. This is apparent in particular from Article 139 of those rules, which refers to ‘proceedings before the General Court’ (see, to that effect, order of 6 October 2009, Nadorcott, T‑95/06 DEP, not published, EU:T:2009:389, paragraph 43 and the case-law cited).

17      It should also be recalled that, according to settled case-law, the EU Courts are not empowered to tax the fees payable by the parties to their own lawyers but may determine the amount of those fees that 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, to that effect, order of 6 October 2009, Nadorcott, T‑95/06 DEP, not published, EU:T:2009:389, paragraph 45 and the case-law cited).

18      It is also settled case-law that, in the absence of any provisions of EU law relating to fee-scales, the Court must make an unfettered assessment of the facts of the case, taking account of the subject matter and the nature of the dispute, its significance from the point of view of EU law, 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 parties had in the dispute (see, to that effect, order of 6 October 2009, Nadorcott, T‑95/06 DEP, not published, EU:T:2009:389, paragraph 46 and the case-law cited).

19      As regards the assessment of the amount of work generated by the contentious proceedings, the primary consideration of the EU Courts is the total number of hours of work which may appear to have been 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 (see order of 14 May 2013, Arrieta D. Gross v OHIM — International Biocentric Foundation and Others (BIODANZA), T‑298/10 DEP, not published, EU:T:2013:237, paragraph 19 and the case-law cited). Furthermore, it should be recalled that the ability of the EU Courts to assess the value of work carried out is dependent on the accuracy of the information provided (see, to that effect, order of 21 May 2014, Esge v OHIM — De’Longhi Benelux (KMIX), T‑444/10 DEP, not published, EU:T:2014:356, paragraph 16 and the case-law cited). Whilst the absence of such information, including in particular the hourly rates and the time spent on various tasks, does not prevent the Court from setting, on the basis of an equitable assessment, the amount of recoverable costs, it nonetheless places it in a situation where the assessment as regards the claims submitted before it must necessarily be strict (see, to that effect and by analogy, order of 17 June 2015, Mundipharma v OHIM — AFT Pharmaceuticals (Maxigesic), T‑328/12 DEP, not published, EU:T:2015:430, paragraph 18and the case-law cited).

20      Lastly, it should be recalled that, according to the case-law, it is necessary to consider the hourly rate which it is sought 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 17 June 2015, Maxigesic, T‑328/12 DEP, not published, EU:T:2015:430, paragraph 19 and the case-law cited).

21      It is in the light of those factors that the amount of the recoverable costs in the present case must be assessed.

22      As a preliminary point, it should be noted that, as is apparent from paragraphs 10 to 12 above, the amount of recoverable costs claimed by the applicant corresponds, on the one hand, to its own lawyers’ fees and, on the other hand, to travel expenses, as indicated in invoices No 4013170 and No 4013457.

23      In the first place, as regards the subject matter and nature of the dispute in the main proceedings, its significance for EU law and the difficulties presented by the case, it must be held that the case in question was not exceptionally complex.

24      It must be held that, with regard to the legal aspects of the case, the only real difficulties, relating, first, to the scope of the obligations of the Board of Appeal to conduct investigations of its own motion and, second, to the need to make use of the Court’s power to alter decisions were not new issues and could therefore be resolved on the basis of existing case-law, as shown by the grounds of the judgment in Case T‑140/15.

25      With regard to the technical and factual aspects of the case, it must be noted that the dispute in the main proceedings was characterised by a factual uncertainty which led the Court to submit several sets of written questions to the parties. In that regard, it should be recalled that the doubts consistently expressed by the applicant that the distinctive character of variety M 02205 had been based, as regards the comparison with one of the two reference varieties, not on the applicant’s notes of expression, as derived from the comparative growing trials carried out in 2003 and 2004, but on those taken from the official description of that variety, were clarified by the CPVO only following a second set of written questions formulated by the Court under Article 89(3) of the Rules of Procedure. Furthermore, it must be noted that it was not until during the hearing before the Court that the CPVO was persuaded to accept that, at the time when the contested decision was adopted, the Board of Appeal did not have the results of the comparative growing trials of 2003 and 2004, since those results were not sent to the CPVO until after the contested decision had been adopted. It follows that the dispute in the main proceedings had undeniable factual and technical complexity.

26      However, the factual and technical difficulties were confined to a key point, linked to the method used by the Examination Office for the comparison of the plant varieties in question. In addition, it must be held that, in so far as the appointed lawyer had participated in the procedure before the CPVO, he was able to draw extensively on the findings presented by Aurora in that procedure, inter alia, to justify the existence of serious doubts as to the assessment of the distinctive character of the contested plant variety. The evidence submitted by the CPVO after the adoption of the contested decision has merely confirmed those findings.

27      In the second place, as regards the applicant’s economic interests, it must be held that, although the dispute in the main proceedings had some economic interest for it, since it concerned the application for annulment of the Community plant variety rights granted to the intervener, for a variety similar to that which the applicant intended to protect, the fact remains that the applicant has not put forward any argument or concrete evidence to establish that the case in question had a particular economic interest for it.

28      In the third place, as regards the amount of work which the contentious proceedings may have generated for the applicant’s lawyers in Case T‑140/15, it must be observed, first of all, that the length of the written submissions which it presented before the Court was entirely normal (some 20 pages). It is true that the applicant provided a number of annexes, but those were largely documents to which it had already referred in the course of the procedure before the CPVO. As to the replies provided to the Court’s written questions, it is true that these generated additional work for the applicant’s representatives, which needs to be taken into account. However, since these essentially involved clarifications and explanations relating to factual and legal elements which had already been addressed by the parties in the course of the procedure before the CPVO, that additional work cannot justify, in itself, a number of hours as significant as that claimed by the applicant in this case, as is apparent from paragraph 11 of the present order.

29      Next, it should be noted that the applicant was represented by four lawyers. In principle, the remuneration of a single lawyer is recoverable, unless, depending on the specific characteristics of the case, in the first place its complexity, the intervention of several lawyers proves to be indispensable (see, to that effect, order of 9 January 2008, Emilio Pucci v El Corte Inglés, C‑104/05 P-DEP, not published, EU:C:2008:1, paragraph 18 and the case-law cited).

30      In the present case, it should be noted that, in the light of the clarifications provided in paragraphs 23 to 26 above relating to the difficulties and complexity of the case in the main proceedings, the latter did not involve any specific circumstances which would justify the expenses incurred for more than one lawyer being considered necessary within the meaning of Article 140(b) of the Court’s Rules of Procedure. Therefore, it must be held that only the costs of the appointed lawyer were objectively necessary.

31      In that respect, it must be held, moreover, that the appointed lawyer had taken part in the procedure before the CPVO. It is clear from settled case-law that the knowledge that the advisers of one of the parties already have of the case by reason of having represented it before the adjudicatory bodies of the CPVO prior to the action being brought in the main proceedings is likely to facilitate, in a significant way, the work and reduce the time required for preparation of the application and other documents submitted to the Court (see, to that effect and by analogy, order of 17 June 2015, Maxigesic, T‑328/12 DEP, not published, EU:T:2015:430, paragraph 27 and the case-law cited). Therefore, it must be held that the appointed lawyer was thus familiar with the specific factual and legal details of the case, with the result that considerably less work and time were needed to prepare the case. That fact must be taken into account by the Court when assessing the number of hours regarded as being objectively necessary.

32      In addition, it should be noted that, under the case-law cited in paragraph 19 above, the ability of the EU Courts to assess whether the costs actually incurred were necessary for the purposes of the proceedings and, therefore, to quantify the work objectively required for the whole of the judicial proceedings is dependent on the accuracy of the information provided by the applicant party.

33      In the present case, it must be stated that, as rightly pointed out by the CPVO in its observations on the applicant’s application for the taxation of costs, no detailed breakdown of work carried out by the applicant’s lawyers was provided, making it difficult to assess whether it was justified. The breakdown of the costs incurred by the applicant, as is apparent from the invoices produced by it before the Court, is too general, with the result that it does not make it possible to identify the type of work carried out during the different work sessions referred to. Therefore, it must be held that those invoices do not distinguish in detail the procedural stages of the dispute in the main proceedings to which the hours of work carried out by the applicant’s lawyers were devoted.

34      Furthermore, it must be held, in that context, that, first, in the absence of more precise information on the amounts indicated in paragraph 12 above, corresponding to the travel expenses claimed by the applicant, and in view of the latter’s failure to produce proof of payment of those expenses, although the burden of proof rested on it, the Court is not in a position to include those sums in the amount of recoverable costs under Article 140(b) of the Rules of Procedure. Second, as regards the amounts challenged by the CPVO, corresponding to invoices No 4010739 and No 4011220, suffice it to note that the latter are not capable of connecting the services provided by the applicant’s lawyers in those invoices to the preparation of the application. That finding is in itself sufficient to exclude those amounts from the recoverable costs under the abovementioned Article 140.

35      In the light of all those considerations, it must be found that the total number of hours which a professional capable of working efficiently and rapidly would have had to devote to all of the tasks involved in representing the applicant before the Court should not exceed the number of hours that the appointed lawyer had himself spent on this case, that is to say, 122.30 hours. It is therefore appropriate to treat that number of hours as being the number objectively necessary for the judicial proceedings in Case T‑140/15.

36      The Court considers that, in view of the circumstances of the main proceedings set out above, and even taking into account the experience of the appointed lawyer, the hourly rates claimed by the latter — as referred to in paragraph 11 above — which are, moreover, in no way substantiated by the applicant, do not appear to have been objectively necessary. Therefore, it must be held that an hourly rate of EUR 300 is more appropriate. Consequently, an equitable assessment of the amount of lawyers’ fees recoverable by the applicant from the CPVO will be made by setting that amount at EUR 36 690.

37      Since that amount takes account of all the circumstances of the case up to the making of the present order, there is no need to give a separate ruling on the application for reimbursement of the expenses incurred by the parties for the purposes of the present proceedings for taxation of costs.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

The Community Plant Variety Office (CPVO) must reimburse to Aurora Srl the sum of EUR 36 690 in respect of recoverable costs.

Luxembourg, 27 September 2018.

*      Language of the case: English.

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