Case T-50/03: Action brought on 10 February 2003 by Gyproc Benelux N.V. against Commission of the European Communities
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), building industry, equal treatment, exchange of information, fine, plaster

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