Andrea Incontri v EUIPO - Higicol (ANDREA INCONTRI) (not supplied - Order) [2019] EUECJ T-197/16DEP

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Andrea Incontri Srl, established in Milan (Italy), represented by J. Graffer and A. Ottolini, lawyers,

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

Higicol, SA, established in Baguim do monte (Portugal), represented by Á. Pinho and J.M. Pimenta, lawyers,

APPLICATION for taxation of costs following the judgment of 22 May 2019, Andrea Incontri v EUIPO — Higicol (ANDREA INCONTRI) (T‑197/16, not published, EU:T:2019:347)

composed of R. da Silva Passos, President, V. Valančius and I. Reine (Rapporteur), Judges,

1 By application lodged at the Court Registry on 22 April 2016, the applicant, Andrea Incontri, brought an action against the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 February 2016 (Case R 146/2015-4), relating to opposition proceedings between Higicol and Andrea Incontri (‘the contested decision in the main proceedings’). By that decision, the Board of Appeal had dismissed the appeal lodged by the applicant against the decision of the Opposition Division and ordered the applicant to bear the fees and costs incurred by Higicol in the appeal proceedings.

2 By judgment of 22 May 2019, Andrea Incontri v EUIPO — Higicol (ANDREA INCONTRI) (T‑197/16, not published, EU:T:2019:347), the Court upheld the action (‘the main proceedings’). It thus ordered EUIPO, in addition to bearing its own costs, to pay half of the costs incurred by the applicant, including the costs which the latter necessarily incurred for the purposes of the proceedings before the Board of Appeal of EUIPO. Similarly, the Court ordered the intervener, in addition to bearing its own costs, to pay half of the costs incurred by the applicant, including the costs which the latter necessarily incurred for the purposes of the proceedings before the Board of Appeal of EUIPO.

3 By letter of 6 June 2019, sent to EUIPO and Higicol by registered post, the applicant requested the payment of the incurred costs and fees in accordance with the judgment handed down in the main proceedings.

4 The defendant received the registered letter on 13 June 2019 and reimbursed the sums requested. By contrast, according to the applicant, the intervener did not react to the registered letter it had been sent.

5 Having not received a response, the applicant sent the intervener a reminder on 3 July 2019. That message was sent also by email to the email address displayed at the bottom of the intervener’s website (https://andreiaprofessional.com/en/entrada). According to the applicant the intervener also did not react to that reminder.

6 By document lodged at the Court Registry on 1 August 2019, the applicant asked the Court, first, to fix the amount of the costs that the intervener must reimburse to the applicant according to the judgment of 22 May 2019, ANDREA INCONTRI (T‑197/16, not published, EU:T:2019:347) and order the intervener to make that payment within a set time limit. The applicant asked the Court, second, in essence, to provide it with a copy of the judgment for the purpose of enforcement.

7 The intervener did not submit any observations on the application for taxation of costs.

8 On 18 October 2019, having regard to the changes in the composition of the Chambers of the Court, it was decided to reassign the case to the Seventh Chamber.

9 According to Article 140(b) of the Rules of Procedure, the expenses necessarily incurred by the parties for the purposes 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 General Court and, second, to those which were necessary for that purpose (see order of 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, not published, EU:T:2016:9, paragraph 11 and the case-law cited).

10 As regards proceedings relating to intellectual property rights, Article 190(2) of the Rules of Procedure states that ‘costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal’ are also regarded as recoverable costs.

11 As regards the calculation by the Court of recoverable costs, it has consistently been held that, in the absence of 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 EU law as well as the difficulties presented by the case, the amount of work generated by the case for the agents and advisers involved and the financial interest which the parties had in the proceedings (orders of 25 January 2007, Royal County of Berkshire Polo Club v OHIM — Polo/Lauren (ROYAL COUNTY OF BERKSHIRE POLO CLUB), T‑214/04 DEP, not published, EU:T:2007:16, paragraph 14, and of 12 January 2016, ANGIPAX, T‑368/13 DEP, not published, EU:T:2016:9, paragraph 13).

12 In order to enable the Court to make the assessment set out in the preceding paragraph, the applicant is to provide the Court with all the necessary information, duly substantiated, on the amount of the costs incurred for the purpose of the proceedings and how they were calculated. That is apparent in particular from Article 76(f) of the Rules of Procedure, according to which the application must contain, where appropriate, any evidence produced or offered.

13 In the present case, it must be stated that the application contains no indication of the amount of the costs incurred by the applicant in the main proceedings and before the Board of Appeal. The applicant has also not provided any documentation enabling the amount of those costs to be established and their necessary nature to be verified, for the purposes of the case-law cited in paragraphs 9 and 11 above. The Court is therefore not in a position to be able to rule on the application for taxation of costs as set out in the application.

14 It follows that the application for taxation of costs must be dismissed as manifestly inadmissible. The same is true as regards the request for a copy of the judgment for the purpose of enforcement, since it is, as a consequence, devoid of purpose.

15 Since the application for taxation of costs has been declared inadmissible and since the intervener did not submit observations as regards that application, it is appropriate to decide that the applicant and the intervener bear their own costs relating to the present proceedings, in accordance with Article 134(3) of the Rules of Procedure.

1. The application for taxation of costs, including the request for a copy of the judgment for the purpose of enforcement, is dismissed as manifestly inadmissible.

2. Andrea Incontri Srl and Higicol, SA shall bear their own costs relating to the present proceedings.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Andrea Incontri v EUIPO - Higicol (ANDREA INCONTRI) (not supplied - Order) [2019] EUECJ T-197/16DEP_CO (18 December 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T19716DEP_CO.html Cite as: EU:T:2019:910, ECLI:EU:T:2019:910, [2019] EUECJ T-197/16DEP_CO

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