Notice pursuant to Article 19(3) of Council Regulation No 17(1) concerning an application for negative clearance or exemption under Article 81(3) of the EC Treaty

(Cases COMP/34.657 - Sammelrevers and COMP/35.245 to 35.251 - Einzelreverse)

(2000/C 162/08)

(Text with EEA relevance)

I. THE NOTIFICATION

1. On 18 March 1993, German and Austrian publishers applied to the Commission, pursuant to Article 4 of Regulation No 17, for negative clearance or, alternatively, for exemption under Article 81(3) of the EC Treaty in respect of their retail price maintenance agreements covering books and other printed products in Germany, Austria and Switzerland (Sammelrevers system). Publishers from the German-speaking area and a number of publishers from other countries as well took part in this price maintenance system.

2. By letters dated 31 March and 10 May 2000, the notifying parties sent the Commission an amended version of the Sammelrevers system. The effect of the changes is that, as from 30 June 2000, the price maintenance agreements between German booksellers on the one hand and Austrian publishers and publishers from Member States other than Germany on the other will be annulled. In addition, as from the same date, the price maintenance agreements between German publishers and publishers from Member States other than Austria on the one hand and Austrian booksellers on the other will be revoked. Publishers from Switzerland, China, the Czech Republic and the United States of America will continue to participate in the new Sammelrevers system.

II. THE NOTIFIED AGREEMENTS AS AMENDED

3. The Sammelrevers system originally notified essentially comprised agreements between German publishers and Austrian booksellers, between Austrian publishers and German booksellers, between German publishers and German booksellers and between Austrian publishers and Austrian booksellers. A number of publishers from Member States other than Germany and Austria also participated. The newly notified Sammelrevers system is now restricted within the EU to agreements between German publishers and German booksellers.

4. The conclusion and supervision of the application of these retail price maintenance agreements are managed centrally by price maintenance trustees (Preisbindungstreuhänder), who are authorised by the publishers to send commitment forms (Verpflichtungserklärungen) on their behalf to all booksellers. In signing this form, the bookseller undertakes to abide by the publisher's list prices in selling books in Germany and Switzerland. Retail price maintenance agreements thus come into being between each participating publisher and each participating bookseller through the offices of the trustee.

5. The same procedure was used as from 1994 by the seven largest publishing houses, which left the Sammelrevers system and operated a retail price maintenance system organised by another trustee (these individual agreements are known as Einzelreverse). The individual agreements of these seven publishers incorporated the terms of the Sammelrevers price maintenance system. By letter dated 31 March 2000, the notifying parties informed the Commission that the individual agreements concluded by the seven largest German publishers were being abolished and that those publishers would be joining the new German national Sammelrevers system.

6. Under the Sammelrevers system, booksellers must pay a stipulated fine each time they deliberately or negligently offer or grant an unauthorised discount. The amount of the fine corresponds to the value of the transaction in question, but may not be less than DEM 3000 for a first offence, DEM 5000 for each subsequent offence and DEM 10000 for offering unauthorised discounts to several customers. Publishers are also entitled to stop supplying a bookseller who has breached the retail price maintenance agreement.

7. The obligations on booksellers also apply in cases where books subject to price maintenance are not bought direct from the publisher, but from the wholesale book trade. Wholesalers are also obliged to examine whether a bookseller is already a party to the Sammelrevers system before making a sale. If a bookseller is not a party, the wholesaler must ensure that the bookseller becomes a party to the agreement. In addition, if the wholesaler supplies retailers outside Germany, he must ensure that such retailers undertake to abide by the price maintenance arrangements in the event that they reimport the books into Germany.

8. German books and printing products reimported into Germany from another Member State are in principle not subject to retail price maintenance. The Sammelrevers system applies to them only if it is clear that the books and similar products were exported solely for the purpose of being reimported in order to avoid the Sammelrevers retail price maintenance arrangements.

9. Besides books, the Sammelrevers system also covers other printed products such as magazines, smaller items (e.g. postcards, greetings cards, illustrated cards and church pamphlets), calendars, art cards and CD-ROMs. About 90 % of books in Germany are subject to the Sammelrevers system and the Einzelreverse.

10. Cross-border sales of books to final consumers in Member States other than the Member State in which the seller is established are not subject to the price maintenance arrangements. This also applies therefore to direct cross-border sales to final consumers via the Internet and direct cross-border sales to final consumers in Germany.

III. ANTI-COMPETITIVE NATURE OF THE AGREEMENTS

11. The retail price maintenance agreements embodied in the Sammelrevers system and concluded through the offices of the price maintenance trustees, and the Einzelreverse price maintenance agreements are agreements within the meaning of Article 81(1) of the EC Treaty.

12. The Sammelrevers system consists of a number of individual retail price maintenance agreements between a number of publishers and a number of booksellers under which the booksellers are required to comply with the retail or shop price set by the publisher for any given title. The ruling out of price competition between booksellers for the relevant titles means that booksellers are prevented from improving their market position through their own competitive efforts by offering books at prices below the shop prices set by the publishers and thus, for example, passing on to consumers benefits achieved through rationalisation measures. Booksellers are also prevented from promoting the sale of books by means of temporary or permanent price reductions. The agreements therefore restrict competition.

IV. EFFECTS ON TRADE BETWEEN MEMBER STATES

13. Since what is involved is price maintenance which regulates only the sale of books of German publishers by German booksellers to final consumers in Germany and since German books reimported into Germany may in principle be sold at freely determined prices and since, for such books, the stipulated prices have to be complied with only where the exportation and reimportation of the books were designed solely to evade the price maintenance arrangements, it may be assumed that the retail price maintenance will not have any appreciable effect on trade between Member States and, consequently, is not caught by Article 81(1) of the EC Treaty.

V. COMMISSION'S INTENTION

14. On the basis of the above, the Commission intends to take the view that the notified agreements are not caught by Article 81(1) of the EC Treaty. Before doing so, however, it invites all interested third parties to send any observations they might have within three weeks of the publication of this notice, citing the reference "COMP/34.657 - Sammelrevers" and "COMP/35.245 to 35.251 - Einzelreverse", to the following address: European Commission Directorate-General for Competition

Directorate C

Rue de la Loi/Wetstraat 200 B - 1049 Brussels Fax (32-2) 296 98 04

(1) OJ 13, 21.2.1962, p. 204/62.