CELEX: C2003/101/77
Language: en
Date: 2003-04-26 00:00:00
Title: Case T-49/03: Action brought on 6 February 2003 by Gunda Schumann against the Commission of the European Communities

26.4.2003              EN                        Official Journal of the European Union                                           C 101/43
Legrand was set at 5 December 2002. According to the                     rejected those measures by making its assessment subordinate
applicant, these economic consequences and the obligation to             to that of a national court and by waiving its exclusive power
comply in good faith with the judgments of the Court of First            to control concentrations of a Community dimension.
Instance meant that the Commission was required to pay
particular attention when resuming the investigation of the
case.
                                                                         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
In support of its action, the applicant claims, first, that the
                                                                         disposed of. In addition, it claims that the Commission
Commission did give effect to the judgment of the Court of
                                                                         infringed the principle of proportionality by refusing to take
First Instance in Case T-310/01. The applicant states that the
                                                                         into account the potential acquirers of the shares disposed
Commission resumed the proceedings at ‘stage I’, whereas the
                                                                         of and an alternative proposal to dispose of a significant
Court of First Instance had held that its examination should be
                                                                         shareholding. Last, the applicant claims that the Commission
recommenced at the stage at which the Commission had
                                                                         infringed Regulation No 4064/89 by refusing to analyse the
committed its procedural error, i.e. at the time of communicat-
                                                                         applicant’s undertakings as to conduct.
ing the statement of objections.
                                                                         Last, the applicant claims that the decision to close the
Second, the applicant claims that there has been a breach of             proceedings is vitiated by an error of law, since it has no legal
its rights of defence. It maintains that the Commission did not          basis in Regulation No 4064/89 or in any other principle of
communicate the objections which it intended to use against              law. In that regard, the applicant also relies on an infringement
it within the prescribed period and with the clarity which               of the principle of collegiality of the Commission.
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
                                                                         (1 ) Case COMP/M.2283 — Schneider/Legrand.
which it carried out for the purpose of evaluating the scope of          (2 ) Initiation of proceedings and abandonment of the planned
the corrective measures proposed by the applicant.                            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
Third, the applicant claims that there has been an infringement               L 395, p. 1).
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
                                                                         Action brought on 6 February 2003 by Gunda Schumann
stating that serious doubts still existed concerning the compati-
                                                                            against the Commission of the European Communities
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                                      (Case T-49/03)
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.                                           (2003/C 101/77)
                                                                                             (Language of the case: German)
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.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Last, the applicant states that the Commission made errors of            European Communities on 6 February 2003 by Gunda
law and errors of assessment when analysing the corrective               Schumann, resident in Berlin, represented by I. Bock, lawyer,
measures proposed by the applicant. Thus, the Commission                 with an address for service in Luxembourg.
 ---pagebreak--- 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