61986CJ0168_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 168/86
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D' APPEL (( APPEAL COURT )), RENNES, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
PROCUREUR GENERAL (( PUBLIC PROSECUTOR ))
AND
YVETTE ROUSSEAU, NANTES,
ON THE INTERPRETATION OF ARTICLES 3 ( F ) AND 7 OF THE EEC TREATY,
THE COURT ( THIRD CHAMBER )
COMPOSED OF : Y . GALMOT, PRESIDENT OF THE CHAMBER, U . EVERLING AND J . C . MOITINHO DE ALMEIDA, JUDGES,
ADVOCATE GENERAL : SIR GORDON SLYNN
REGISTRAR : P . HEIM
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AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF :
YVETTE ROUSSEAU, IN WRITING, BY MESSRS MENARD AND QUIMBERT, AVOCATS,
THE COMMISSION OF THE EUROPEAN COMMUNITIES, IN WRITING AND ORALLY, BY C . DURAND AND D . JACOB, MEMBERS OF ITS LEGAL DEPARTMENT,
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 4 FEBRUARY 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED ON THE SAME OCCASION,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY JUDGMENT OF 16 MAY 1986, WHICH WAS RECEIVED AT THE COURT ON 10 JULY 1986, THE COUR D' APPEL, RENNES, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION CONCERNING THE INTERPRETATION OF ARTICLES 3 ( F ) AND 7 OF THE EEC TREATY IN ORDER TO ENABLE IT TO ASSESS THE COMPATIBILITY WITH COMMUNITY LAW OF NATIONAL LEGISLATION REQUIRING RETAILERS TO CHARGE A FIXED PRICE FOR BOOKS SOLD TO THE PUBLIC .
2 THAT QUESTION WAS RAISED IN CRIMINAL PROCEEDINGS BROUGHT AGAINST YVETTE ROUSSEAU, WHO WAS PROSECUTED FOR SELLING BOOKS IN THE CENTRE LECLERC DE LA BOTTIERE, WHERE SHE IS MANAGING DIRECTOR, AT A DISCOUNT OF MORE THAN 5% IN RELATION TO THE PRICE FIXED BY THE J . 168/86
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PUBLISHER, CONTRARY TO THE PROVISIONS OF LAW NO 81-766 OF 10 AUGUST 1981 ON THE PRICE OF BOOKS ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 11 AUGUST 1981 ).
3 UNDER THAT LAW THE ACTUAL PRICE AT WHICH RETAILERS OFFER BOOKS FOR SALE TO THE PUBLIC MUST BE BETWEEN 95% AND 100% OF THE PRICE WHICH ANY PUBLISHER OR IMPORTER OF BOOKS IS OBLIGED TO CHARGE . SINCE ITS AMENDMENT BY LAW NO 85-500 OF 13 MAY 1985, THE PROVISIONS OF LAW NO 81-766 DO NOT APPLY TO BOOKS IMPORTED FROM A MEMBER STATE OF THE EUROPEAN ECONOMIC COMMUNITY, UNLESS THERE ARE OBJECTIVE FACTORS, IN PARTICULAR THE FACT THAT THE BOOKS ARE NOT MARKETED IN THAT STATE, WHICH ESTABLISH THAT THE PURPOSE OF THE OPERATION WAS TO EVADE THE PROVISIONS CONCERNING THE SELLING PRICES WHICH RETAILERS ARE REQUIRED TO CHARGE TO THE PUBLIC . EXCEPT IN THE LATTER CASE, SELLING PRICES OF BOOKS PUBLISHED IN FRANCE MAY THEREFORE BE FREELY DETERMINED IF THE BOOKS ARE MARKETED AFTER BEING EXPORTED TO ANOTHER MEMBER STATE AND SUBSEQUENTLY RE-IMPORTED .
4 TAKING THE VIEW THAT THE EFFECT OF THAT LEGISLATION WAS TO PLACE AT A DISADVANTAGE BOOKS PUBLISHED AND MARKETED IN FRANCE BUT NOT RELEASED INTO FREE CIRCULATION IN ANOTHER MEMBER STATE IN SO FAR AS THEY WERE EXPOSED TO UNRESTRICTED COMPETITION FROM BOOKS WHICH HAD BEEN EXPORTED AND SUBSEQUENTLY RE-IMPORTED, THE COUR D' APPEL REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
"MUST ARTICLES 3 ( F ) AND 7 OF THE EEC TREATY BE INTERPRETED AS PROHIBITING THE ESTABLISHMENT ON THE TERRITORY OF A SINGLE MEMBER STATE, IN RESPECT OF BOOKS PUBLISHED BY THE SAME PUBLISHER, OF TWO SEPARATE SETS OF LEGAL RULES - MAXIMUM
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DISCOUNT AND COMPLETE FREEDOM OF PRICES - WHOSE DETERMINATION AND APPLICATION DEPEND ON WHETHER OR NOT BOOKS SOLD IN THAT STATE HAVE BEEN EXPORTED AND THEN RE-IMPORTED?"
5 IT SHOULD BE NOTED THAT A QUESTION COUCHED IN SIMILAR TERMS REFERRED TO THE COURT BY THE TRIBUNAL D' INSTANCE (( DISTRICT COURT )), BRESSUIRE, IN CRIMINAL PROCEEDINGS BROUGHT FOR NON-OBSERVANCE OF THE SELLING PRICES FIXED UNDER THE SAME LEGISLATION WAS DECIDED BY THE COURT IN ITS JUDGMENT OF 23 OCTOBER 1986 IN CASE 355/85 ( DRIANCOURT V COGNET (( 1986 )) ECR 3231 ).
6 CONSIDERATION OF THIS CASE HAS NOT DISCLOSED ANY NEW POINTS NOT ALREADY RAISED IN CASE 355/85 . IN THOSE CIRCUMSTANCES, IT IS SUFFICIENT TO REFER TO THE GROUNDS OF THE JUDGMENT IN THAT CASE, A COPY OF WHICH IS ATTACHED TO THIS JUDGMENT .
7 THE ANSWER TO THE QUESTION SUBMITTED BY THE COUR D' APPEL, RENNES, MUST THEREFORE BE, IN THE WORDS USED BY THE COURT IN ITS JUDGMENT OF 23 OCTOBER 1986, THAT NEITHER ARTICLE 7 OF THE EEC TREATY NOR ANY OTHER PROVISION OR PRINCIPLE OF THAT TREATY APPLIES TO A DIFFERENCE OF TREATMENT UNDER LEGISLATION WHICH PROVIDES THAT THE RETAIL SELLING PRICE OF BOOKS IS TO BE FIXED BY THE PUBLISHER OR THE IMPORTER OF A BOOK, WHICH IS BINDING ON ALL RETAILERS AND ACCORDING TO WHICH THE PRICE OF BOOKS PUBLISHED AND PRINTED IN THE MEMBER STATE CONCERNED MAY BE FREELY DETERMINED WHERE THE BOOKS ARE RE-IMPORTED AFTER HAVING FIRST BEEN EXPORTED TO ANOTHER MEMBER STATE, WHEREAS THE PRICE IS FIXED BY THE PUBLISHER WHERE THE BOOKS HAVE NOT CROSSED A BORDER WITHIN THE COMMUNITY IN THE COURSE OF BEING MARKETED .
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Decision on costs
COSTS
8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
On those grounds,
THE COURT ( Third Chamber ),
in answer to the question referred to it by the cour d' appel, Rennes, by judgment of 16 May 1986,
hereby rules :
Neither Article 7 of the EEC Treaty nor any other provision or principle of that Treaty applies to a difference of treatment under legislation which provides that the retail selling price of books is to be fixed by the publisher or the importer of a book, which is binding on all retailers and according to which the price of books published and printed in the Member State concerned may be freely determined where the books are re-imported after having first been exported to another Member State, whereas the price is fixed by the publisher where the books have not crossed a border within the Community in the course of being marketed .
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