# C_2008037EN.01001402.xml

| 9.2.2008 | EN | Official Journal of the European Union | C 37/14 |
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9.2.2008

EN

Official Journal of the European Union

C 37/14

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Reference for a preliminary ruling from the Obersten Gerichtshof (Austria) lodged on 29 November 2007 — Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH

(Case C-531/07)

(2008/C 37/19)

Language of the case: German

Referring court

Obersten Gerichtshof

Parties to the main proceedings

Applicant: Fachverband der Buch- und Medienwirtschaft

Applicant:

Defendant: LIBRO Handelsgesellschaft mbH

Defendant:

Questions referred

| 1. | Is Article 28 EC to be interpreted as meaning that it precludes the application per se of national provisions which oblige only importers of German language books to fix and to publish a retail price for books imported into Austria which is binding on the retailer, where the importer cannot fix a retail price which is lower than the retail price fixed or recommended by the publisher for the State in which the book is published, or lower than the retail price recommended for his national territory by a publisher whose seat is not in the territory of a Contracting Party to the Agreement on the European Economic Area (EEA), less any value added tax such price includes, but, by way of exception, permit an importer who purchases in the territory of a Contracting Party to the EEA at a price lower than the usual purchase prices to sell at less than the price fixed or recommended by the publisher for the State of publication — or in the case of re-imports the price fixed by the Austrian publisher — by an amount proportionate to the commercial advantage he has obtained? |
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1.

Is Article 28 EC to be interpreted as meaning that it precludes the application per se of national provisions which oblige only importers of German language books to fix and to publish a retail price for books imported into Austria which is binding on the retailer, where the importer cannot fix a retail price which is lower than the retail price fixed or recommended by the publisher for the State in which the book is published, or lower than the retail price recommended for his national territory by a publisher whose seat is not in the territory of a Contracting Party to the Agreement on the European Economic Area (EEA), less any value added tax such price includes, but, by way of exception, permit an importer who purchases in the territory of a Contracting Party to the EEA at a price lower than the usual purchase prices to sell at less than the price fixed or recommended by the publisher for the State of publication — or in the case of re-imports the price fixed by the Austrian publisher — by an amount proportionate to the commercial advantage he has obtained?

per se

| 2. | If the first question is answered in the affirmative:
  Is the national statutory obligation to sell books at the fixed price which, according to the first question, is per se incompatible with Article 28 EC — in any event on the basis that it constitutes selling arrangements which infringe free movement of goods — justified by reference to Article 30 or Article 151 EC, on the basis that its purpose is, very generally, described as the need to have regard to ‘the status of books as cultural assets, consumers' interest in reasonable prices for books, and the commercial characteristics of the book trade’, for example having regard to a general interest in encouraging the production of books, a diversity of titles at regulated prices, and a diversity of bookshops, notwithstanding the lack of empirical data which could prove that a statutory obligation to sell books at the fixed price is a suitable means for achieving the intended purposes? |
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2.

If the first question is answered in the affirmative:

Is the national statutory obligation to sell books at the fixed price which, according to the first question, is per se incompatible with Article 28 EC — in any event on the basis that it constitutes selling arrangements which infringe free movement of goods — justified by reference to Article 30 or Article 151 EC, on the basis that its purpose is, very generally, described as the need to have regard to ‘the status of books as cultural assets, consumers' interest in reasonable prices for books, and the commercial characteristics of the book trade’, for example having regard to a general interest in encouraging the production of books, a diversity of titles at regulated prices, and a diversity of bookshops, notwithstanding the lack of empirical data which could prove that a statutory obligation to sell books at the fixed price is a suitable means for achieving the intended purposes?

per se

| 3. | If the first question is answered in the negative:
  Is the national statutory obligation to sell books at the fixed price, as described in the first question, compatible with Articles 3(1)(g) EC, 10 EC and 81 EC, notwithstanding that in terms of time and substance there was a seamless transition from them to the previous contractual obligation on booksellers to sell at prices fixed by publishers for published works (the 1993 reverse collection scheme), and they replaced this contractual scheme? |
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3.

If the first question is answered in the negative:

Is the national statutory obligation to sell books at the fixed price, as described in the first question, compatible with Articles 3(1)(g) EC, 10 EC and 81 EC, notwithstanding that in terms of time and substance there was a seamless transition from them to the previous contractual obligation on booksellers to sell at prices fixed by publishers for published works (the 1993 reverse collection scheme), and they replaced this contractual scheme?

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