Case T-49/03: Action brought on 6 February 2003 by Gunda Schumann against the Commission of the European Communities
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition (EU), equal treatment

26.4.2003

EN

Official Journal of the European Union

C 101/43

Legrand was set at 5 December 2002. According to the
applicant, these economic consequences and the obligation to
comply in good faith with the judgments of the Court of First
Instance meant that the Commission was required to pay
particular attention when resuming the investigation of the
case.

In support of its action, the applicant claims, first, that the
Commission did give effect to the judgment of the Court of
First Instance in Case T-310/01. The applicant states that the
Commission resumed the proceedings at ‘stage I’, whereas the
Court of First Instance had held that its examination should be
recommenced at the stage at which the Commission had
committed its procedural error, i.e. at the time of communicat-
ing the statement of objections.

Second, the applicant claims that there has been a breach of
its rights of defence. It maintains that the Commission did not
communicate the objections which it intended to use against
it within the prescribed period and with the clarity which
would give it the proper opportunity to submit corrective
measures. The applicant further states that the Commission
refused to grant any access to the results of the market studies
which it carried out for the purpose of evaluating the scope of
the corrective measures proposed by the applicant.

Third, the applicant claims that there has been an infringement
of the principle of good administration, in that the Commission
distorted the corrective measures in the questionnaire drawn
up for the purpose of the market studies and did not take into
account certain factual matters which qualified the results.

Fourth, the applicant relies on a number of errors of law and
of manifest errors of assessment. The applicant claims that the
Commission ignored the consequences of its decisions by
stating that serious doubts still existed concerning the compati-
bility of the operation with the common market. According to
the applicant, the Commission therefore failed, contrary to the
second paragraph of Regulation No 4064/89 (3) and to the
judgment of the Court of First Instance, to adopt a definitive
position. Furthermore, the Commission is also alleged to have
applied a stricter standard of proof to the facts in issue than
that laid down in Article 2(2) of Regulation No 4064/89.

The applicant further claims that the Commission at no time
approached the level of proof required to demonstrate the
effects of a conglomerate of this type.

rejected those measures by making its assessment subordinate
to that of a national court and by waiving its exclusive power
to control concentrations of a Community dimension.

In addition,

The applicant also claims that the Commission made a
manifest error of assessment in considering that the corrective
measures proposed were insufficient in the light of
the
allegedly inadequate industrial viability of the undertakings
disposed of.
it claims that the Commission
infringed the principle of proportionality by refusing to take
into account the potential acquirers of the shares disposed
of and an alternative proposal to dispose of a significant
shareholding. Last, the applicant claims that the Commission
infringed Regulation No 4064/89 by refusing to analyse the
applicant’s undertakings as to conduct.

Last, the applicant claims that the decision to close the
proceedings is vitiated by an error of law, since it has no legal
basis in Regulation No 4064/89 or in any other principle of
law. In that regard, the applicant also relies on an infringement
of the principle of collegiality of the Commission.

(1) Case COMP/M.2283 — Schneider/Legrand.
(2) Initiation of proceedings and abandonment of

the planned
concentration (Case COMP/M.2283 — Schneider/Legrand II) (Text
with EEA relevance) (OJ 2003 C 29, p. 5).

(3) Council Regulation (EEC) No 4064/89/EEC of 21 December 1989
on the control of concentrations between undertakings (OJ 1989
L 395, p. 1).

Action brought on 6 February 2003 by Gunda Schumann
against the Commission of the European Communities

(Case T-49/03)

(2003/C 101/77)

(Language of the case: German)

Last, the applicant states that the Commission made errors of
law and errors of assessment when analysing the corrective
measures proposed by the applicant. Thus, the Commission

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 February 2003 by Gunda
Schumann, resident in Berlin, represented by I. Bock, lawyer,
with an address for service in Luxembourg.

C 101/44

EN

Official Journal of the European Union

26.4.2003

The applicant claims that the Court should:

— annul the decision of 4 June 2002 whereby the selection
board in Competition COM/A/11/01 eliminated the
applicant at the conclusion of the preliminary tests and
did not admit her to the following tests, and also annul
the decision of 19 July 2002 whereby the same selection
board confirmed its first decision after re-examination;
and

— order the Commission to pay the costs.

Benelux N.V., whose registered office is at Wijnegem (Belgium),
represented by Jean-François Bellis, Peter L’Ecluse and Martin
Favart, lawyers.

The applicant claims that the Court should:

— substantially reduce the fine imposed on Gyproc by the
decision of the Commission of 27 November 2002 in
Case COMP/E-1/37.152 — Plasterboard relating to a
proceeding pursuant to Article 81 EC;

Pleas in law and main arguments

— order the Commission to pay the costs.

The applicant took part in the preliminary tests of Open
Competition COM/A/11/01. By the decision of the selection
board of 4 June 2002, the applicant was informed that she
had not attained the minimum number of points required and
could therefore not be admitted to the further tests in the
competition. In the annex to the decision, it was explained
that one question of the test had been annulled, and that
therefore only 39 answers had been taken into consideration
in evaluating the tests.

The applicant argues that the two decisions against which her
action is brought infringe the principle of proportionality,
inasmuch as it was not necessary, in order to ensure equality
of treatment between candidates and an objective assessment
of the aptitudes of all the participants in the competition,
retrospectively to annul a question of the test
in all the
language versions, whereas all that was needed was to remove
irregularities appearing in only one of them. Those decisions
were, moreover, disproportionate in that they did not take
account of the necessary balance between the general interest
and individual interests. It was the annulment of one question
and, therefore, the failure to take the effectively ‘correct’ answer
into account, which caused the selection board not to admit
the applicant to the subsequent stages of the preliminary tests.
This is therefore a case of hardship, which the selection board
has not treated as such.

Action brought on 10 February 2003 by Gyproc Benelux
N.V. against Commission of the European Communities

(Case T-50/03)

(2003/C 101/78)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 February 2003 by Gyproc

Pleas in law and main arguments

The decision which is the subject-matter of this application
concerns an arrangement between BPB, Gebrüder Knauf
Westdeutsche Gipswerke KG, Société Lafarge SA and the
applicant on the plasterboard market. The applicant does not
deny the existence of certain practices which the Commission
held to be infringements. It never the less drew the defendant’s
attention to the fact that the scope of the complaints against it
should significantly reduce over time, space and intensity.

its claims,

the applicant alleges that

In support of
the
Commission committed an error of assessment and infringed
Article 81 of the EC Treaty by considering that it exchanged
data on the volume of sales on the German, United Kingdom,
French and Benelux markets between June 1996 and Nov-
ember 1998.

The applicant also takes the view that the defendant committed
an error of assessment and infringed Article 15(2) of Regu-
lation No 17 and the guidelines on the calculation of
fines, Article 253 of the EC Treaty and the principles of
proportionality, equal of treatment, fairness and of the protec-
tion of legitimate expectations:

— by failing to take into account, first, the very small overall
size of the of the applicant and the ‘one-item’ nature of
its business and, secondly, the absence of any illegal
conduct on the part of the applicant on the UK market,
or on the French or Benelux markets between June 1996
and April 1998.

— by failing to take account, as mitigating circumstances,
the applicant and,
the infringement by the

first, of the role as ‘follower’ of
secondly, of
applicant as soon as the Commission intervened.

the ceasing of