A guide to the UPC and the UP - Flipbook - Page 411
recommendation of the Advocate General Campos Sánchez-Bordona, the CJEU held that
national legislation which (1) allows the court responsible for making the cost order the
possibility of taking into account features specific to the case before it and (2) provides for a flatrate scheme for the reimbursement of costs for the assistance of a lawyer, is allowed as long as
the flat rates ensure that the costs to be borne by the unsuccessful party are reasonable. At the
suggestion of the European Commission, the CJEU completed its reading of art.14 Enforcement
Directive by adding that this provision precludes national legislation providing flat rates with
maximum amounts that are too low and that do not ensure that, at the very least, a significant
and appropriate part of the reasonable costs incurred by the successful party is borne by the
unsuccessful party. While this ruling may force certain Member States to increase their ceilings
for national proceedings, or allow national courts to strike down legislation with ceilings which
are deemed to be too low, it legitimised both the principle as well as the amounts in the
table setting out the scale of ceilings for recoverable costs as adopted by the Administrative
Committee (see table 20-6).
20-42 Secondly, although the general rule is that the unsuccessful party pays the costs of the
successful party, equity serves as a self-standing ground for rendering the general rule
inapplicable. In a situation where there is partial success, or in exceptional circumstances,
the Court may order that the costs be apportioned equitably. 102 Further, a party should bear
any unnecessary costs it has caused the Court or another party. 103 The ceilings specified in
the Scale of Recoverable Costs should not, therefore, be considered the default recoverable
costs for all cases of a specific value. Rather, they should be considered as a safety net,
i.e. an absolute cap on recoverable costs.
Table 20-6: Scale 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
102
103
Article 14 [Enforcement Directive] preclude Belgian legislation that offers courts the possibility of taking into account
certain well-defined features specific to the case and which provides for a system of varying flat rates in respect of
costs for the assistance of a lawyer?”.
art.69(2) UPCA.
art.69(3) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 401
