CELEX: C2003/101/78
Language: en
Date: 2003-04-26 00:00:00
Title: Case T-50/03: Action brought on 10 February 2003 by Gyproc Benelux N.V. against Commission of the European Communities

C 101/44               EN                          Official Journal of the European Union                                          26.4.2003
The applicant claims that the Court should:                                Benelux N.V., whose registered office is at Wijnegem (Belgium),
                                                                           represented by Jean-François Bellis, Peter L’Ecluse and Martin
—     annul the decision of 4 June 2002 whereby the selection              Favart, lawyers.
      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              The applicant claims that the Court should:
      board confirmed its first decision after re-examination;
      and                                                                  —     substantially reduce the fine imposed on Gyproc by the
                                                                                 decision of the Commission of 27 November 2002 in
—     order the Commission to pay the costs.                                     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                 Pleas in law and main arguments
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                  The decision which is the subject-matter of this application
therefore only 39 answers had been taken into consideration                concerns an arrangement between BPB, Gebrüder Knauf
in evaluating the tests.                                                   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
The applicant argues that the two decisions against which her
                                                                           held to be infringements. It never the less drew the defendant’s
action is brought infringe the principle of proportionality,
                                                                           attention to the fact that the scope of the complaints against it
inasmuch as it was not necessary, in order to ensure equality              should significantly reduce over time, space and intensity.
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               In support of its claims, the applicant alleges that the
irregularities appearing in only one of them. Those decisions              Commission committed an error of assessment and infringed
were, moreover, disproportionate in that they did not take                 Article 81 of the EC Treaty by considering that it exchanged
account of the necessary balance between the general interest              data on the volume of sales on the German, United Kingdom,
and individual interests. It was the annulment of one question             French and Benelux markets between June 1996 and Nov-
and, therefore, the failure to take the effectively ‘correct’ answer       ember 1998.
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.                                                   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:
Action brought on 10 February 2003 by Gyproc Benelux                       —     by failing to take into account, first, the very small overall
 N.V. against Commission of the European Communities                             size of the of the applicant and the ‘one-item’ nature of
                                                                                 its business and, secondly, the absence of any illegal
                          (Case T-50/03)                                         conduct on the part of the applicant on the UK market,
                                                                                 or on the French or Benelux markets between June 1996
                                                                                 and April 1998.
                         (2003/C 101/78)
                                                                           —     by failing to take account, as mitigating circumstances,
                  (Language of the case: French)
                                                                                 first, of the role as ‘follower’ of the applicant and,
                                                                                 secondly, of the ceasing of the infringement by the
                                                                                 applicant as soon as the Commission intervened.
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