The Preparatory Committee agreed last week on the ceilings applicable to recoverable costs together with Court Fees (see our post here on this topic). In this post we look at the specification of the costs deemed recoverable and the determination of the ceilings for the recoverable costs.
So which cost can be recovered?
- Only reasonable and proportionate legal costs and other expenses incurred by the successful party may be recovered from the unsuccessful party.
- The ceilings of recoverable costs shall apply to representation costs.
And how much can be recovered?
These ceilings are a compromise to accommodate the different approaches already existing in the Member States:
- The ceiling shall be applied to each instance of the Court proceedings regardless of the number of parties, claims or patents concerned
- In case of partial success the ceiling applicable in the case shall correspond to the proportion of success of the party seeking cost recovery.
- Unnecessary costs caused to the Court or the other party shall be borne by the party incurring them, which means that even the successful party has to reimburse costs caused that are deemed unnecessary by the Court.
The ceilings are only to be regarded as a safety net, i.e. an absolute cap on recoverable representation costs applicable in every case. The Court has therefore a large margin of appreciation when applying the safeguarding principles before making a cost decision, and the table of ceilings is designed to cater to most situations:
- In limited situations, such as the particular complexity of the case or multiple languages used in the proceeding, the Court may upon request by one party, having regard to the financial capability of all the parties in the light of the principle of fair access to justice, raise the ceiling by up to 50%. The increase will be limited to up to 25% where the value is more that EUR 1 million and up to and including EUR 50 million. The top ceiling however retains an absolute maximum of EUR 5 million.
- There is no limit to the level the ceilings may be reduced.
- Upon request of one of the parties, the Court may lower the ceiling with regard to that party if, in the event that the requesting party is unsuccessful, the applicable level of recoverable costs of representation to be awarded to the successful party would threaten the economic existence of the requesting party, especially if the latter is a micro-enterprise, SME, non-profit organisation, university, public research organisation or natural person. All types of organisation may make this request, but those from micro-enterprises, SMEs, non-profit organisations, universities, public research organisations or natural persons are given particular emphasis in the wording.
The Table of ceilings for recoverable costs:
|Value of the proceeding||Ceiling for recoverable costs|
|Up to and including 250.000 €||Up to 38.000 €|
|Up to and including 500.000 €||Up to 56.000 €|
|Up to and including 1.000.000 €||Up to 112.000 €|
|Up to and including 2.000.000 €||Up to 200.000 €|
|Up to and including 4.000.000 €||Up to 400.000 €|
|Up to and including 8.000.000 €||Up to 600.000 €|
|Up to and including 16.000.000 €||Up to 800.000 €|
|Up to and including 30.000.000 € €||Up to 1.200.000 €|
|Up to and including 50.000.000 €||Up to 1.500.000 €|
|More than 50.000.000 €||Up to 2.000.000 €|