Judgment of the Court (Third Chamber) of 11 July 1985. - SA Saint-Herblain distribution, Centre distributeur Leclerc and others v Syndicat des libraires de Loire - Océan. - Reference for a preliminary ruling: Tribunal de grande instance de Nantes - France. - Fixed prices for books. - Case 299/83.



European Court reports 1985 Page 02515



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . COMPETITION - COMMUNITY RULES - NATIONAL LEGISLATION ON THE PRICE OF BOOKS - COMPATIBILITY - CONDITIONS

( EEC TREATY , ART . 3 ( F ), ART . 5 , SECOND PARA . AND ART . 85 )

2 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES EQUIVALENT IN EFFECT - LEGISLATION ON THE PRICE OF BOOKS - PROHIBITION - CONDITIONS

( EEC TREATY , ART . 30 )

Summary

1 . AS COMMUNITY LAW STANDS , THE SECOND PARAGRAPH OF ARTICLE 5 OF THE TREATY , IN CONJUNCTION WITH ARTICLES 3 ( F ) AND 85 , DO NOT PRECLUDE MEMBER STATES FROM ENACTING LEGISLATION WHEREBY THE RETAIL PRICE OF BOOKS MUST BE FIXED BY THE PUBLISHER OR BY THE IMPORTER AND IS BINDING ON ALL RETAILERS , PROVIDED THAT SUCH LEGISLATION IS CONSONANT WITH THE OTHER SPECIFIC PROVISIONS OF THE TREATY , IN PARTICULAR THOSE RELATING TO THE FREE MOVEMENT OF GOODS .

2 . IN THE CONTEXT OF NATIONAL LEGISLATION ON THE PRICE OF BOOKS , THE FOLLOWING CONSTITUTE MEASURES EQUIVALENT IN EFFECT TO QUANTITATIVE RESTRICTIONS ON IMPORTS , CONTRARY TO ARTICLE 30 OF THE TREATY : ( A ) PROVISIONS WHEREBY THE IMPORTER RESPONSIBLE FOR COMPLYING WITH THE STATUTORY REQUIREMENT TO DEPOSIT ONE COPY OF EACH IMPORTED BOOK WITH THE AUTHORITIES , THAT IS TO SAY THE PRINCIPAL DISTRIBUTOR , IS RESPONSIBLE FOR FIXING THE RETAIL PRICE , AND ( B ) PROVISIONS REQUIRING THE RETAIL PRICE FIXED BY THE PUBLISHER TO BE APPLIED TO BOOKS PUBLISHED IN THE MEMBER STATE CONCERNED AND RE-IMPORTED FOLLOWING EXPORTATION TO ANOTHER MEMBER STATE , UNLESS IT IS ESTABLISHED THAT THOSE BOOKS WERE EXPORTED FOR THE SOLE PURPOSE OF RE-IMPORTATION IN ORDER TO CIRCUMVENT THE LEGISLATION IN QUESTION .

Parties

IN CASE 299/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), NANTES , FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN

SA SAINT HERBLAIN DISTRIBUTION , CENTRE DISTRIBUTEUR LECLERC , SAINT HERBLAIN , AND SA PARIS DISTRIBUTION , CENTRE DISTRIBUTEUR LECLERC , NANTES , AND

ASSOCIATION DES CENTRES DISTRIBUTEURS EDOUARD LECLERC , PARIS ,

AND

SYNDICAT DES LIBRAIRES DE LOIRE-OCEAN , ANGERS ,

Subject of the case

ON THE INTERPRETATION OF ARTICLES 3 ( F ) AND 5 OF THE EEC TREATY ,

Grounds

1 BY A JUDGMENT OF 22 NOVEMBER 1983 , WHICH WAS RECEIVED AT THE COURT ON 29 DECEMBER 1983 , THE TRIBUNAL DE GRANDE INSTANCE , NANTES , REFERRED A QUESTION TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING ON THE INTERPRETATION OF VARIOUS RULES OF COMMUNITY LAW , IN PARTICULAR THE PROVISIONS RELATING TO FREE COMPETITION IN THE COMMON MARKET AND ARTICLES 3 ( F ) AND 5 OF THE EEC TREATY , SO AS TO ENABLE IT TO ASSESS THE COMPATIBILITY WITH COMMUNITY LAW OF NATIONAL LEGISLATION REQUIRING ALL RETAILERS TO ABIDE BY THE SELLING PRICES FOR BOOKS FIXED BY THE PUBLISHER OR IMPORTER .

2 THE QUESTION WAS RAISED IN PROCEEDINGS BETWEEN , ON THE ONE HAND , SYNDICAT DES LIBRAIRES DE LOIRE-OCEAN AND , ON THE OTHER HAND , THE COMPANIES SAINT HERBLAIN DISTRIBUTION SA AND PARIS DISTRIBUTION SA , WHICH RUN SHOPS UNDER THE NAME ' CENTRE DISTRIBUTEUR LECLERC ' , AND ASSOCIATION DES CENTRES DISTRIBUTEURS EDOUARD LECLERC , WHICH HAS SHOPS UNDER THE SAME NAME WITH A REPUTATION FOR PURSUING A POLICY OF LOW PRICES . THE DISPUTE CONCERNS THE FAILURE BY THE CENTRES DISTRIBUTEURS LECLERC TO OBSERVE THE RETAIL PRICES FIXED PURSUANT TO LAW NO . 81-766 OF 10 AUGUST 1981 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANSSAISE OF 11 AUGUST 1981 ).

3 UNDER THE LAW OF 10 AUGUST 1981 ALL PUBLISHERS OR IMPORTERS OF BOOKS ARE REQUIRED TO FIX RETAIL PRICES FOR THE BOOKS WHICH THEY PUBLISH OR IMPORT . RETAILERS MUST CHARGE AN EFFECTIVE PRICE FOR SALES TO THE PUBLIC OF BETWEEN 95% AND 100% OF THAT PRICE . THE LAW EXEMPTS CERTAIN PRIVATE AND PUBLIC ENTITIES , SUCH AS LIBRARIES AND EDUCATIONAL ESTABLISHMENTS , FROM HAVING TO PAY THAT PRICE AND IT AUTHORIZES CLEARANCE SALES , SUBJECT TO CERTAIN CONDITIONS . IF THE PROVISIONS OF THE LAW ARE CONTRAVENED COMPETITORS AND VARIOUS TYPES OF ASSOCIATION MAY SEEK AN INJUNCTION OR CLAIM DAMAGES ; CRIMINAL PROCEEDINGS MAY ALSO BE BROUGHT .

4 AS FAR AS IMPORTED BOOKS ARE CONCERNED , THE LAST PARAGRAPH OF ARTICLE 1 OF THE LAW PROVIDES THAT ' WHERE IMPORTED BOOKS WERE PUBLISHED IN FRANCE THE RETAIL PRICE FIXED BY THE IMPORTER SHALL BE NO LESS THAN THAT FIXED BY THE PUBLISHER ' . DECREE NO . 81-1068 OF 3 DECEMBER 1981 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 4 DECEMBER 1981 ), ISSUED PURSUANT TO THE LAW OF 10 AUGUST 1981 , FURTHER PROVIDES THAT THE PRINCIPAL DISTRIBUTOR OF IMPORTED BOOKS WHO MUST COMPLY WITH THE REQUIREMENT LAID DOWN IN ARTICLE 8 OF THE LAW OF 21 JUNE 1943 - NAMELY THE REQUIREMENT THAT A COMPLETE COPY MUST BE DEPOSITED WITH THE MINISTRY OF THE INTERIOR - IS DEEMED TO BE THE IMPORTER .

5 THE SYNDICAT DES LIBRAIRES DE LOIRE-OCEAN APPLIED TO THE TRIBUNAL DE GRANDE INSTANCE , NANTES , FOR AN INJUNCTION AGAINST THE COMPANIES SAINT HERBLAIN DISTRIBUTION AND PARIS DISTRIBUTION - WHICH ISSUED A THIRD-PARTY NOTICE AGAINST ASSOCIATION DES CENTRES DISTRIBUTEURS EDOUARD LECLERC - TO RESTRAIN THE DEFENDANTS FROM CHARGING PRICES LOWER THAN THOSE FIXED PURSUANT TO THE ABOVE-MENTIONED LEGISLATION ; THE TRIBUNAL DE GRANDE INSTANCE THEREUPON REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' MUST ARTICLES 3 ( F ) AND 5 OF THE EEC TREATY BE INTERPRETED AS PROHIBITING THE SETTING UP IN A MEMBER STATE , BY LAW OR BY REGULATION , IN RESPECT OF BOOKS PUBLISHED IN THAT MEMBER STATE AND BOOKS IMPORTED INTO THAT STATE , IN PARTICULAR FROM OTHER MEMBER STATES , OF A SYSTEM WHICH COMPELS RETAILERS TO SELL THE BOOKS AT THE PRICE FIXED BY THE PUBLISHER OR THE IMPORTER WITHOUT BEING ABLE TO REDUCE THAT PRICE BY MORE THAN 5%?

'

6 IT SHOULD BE NOTED THAT A QUESTION FOR A PRELIMINARY RULING IN IDENTICAL TERMS WAS SUBMITTED BY THE COUR D ' APPEL , POITIERS , IN SIMILAR PROCEEDINGS AND WAS THE SUBJECT OF THE JUDGMENT OF THE COURT OF 10 JANUARY 1985 ( CASE 229/83 , ASSOCIATION DES CENTRES DISTRIBUTEURS LECLERC V AU BLE VERT SARL AND OTHERS ( 1985 ) ECR 17 ).

7 WHEN IT WAS INFORMED OF THAT JUDGMENT THE TRIBUNAL DE GRANDE INSTANCE , NANTES , NOTIFIED THE COURT THAT IT DID NOT WISH TO WITHDRAW THE REQUEST FOR A PRELIMINARY RULING .

8 CONSIDERATION OF THE PRESENT CASE HAS REVEALED NOTHING THAT WAS NOT ALREADY KNOWN TO THE COURT IN CASE 229/83 . IN THOSE CIRCUMSTANCES IT IS SUFFICIENT TO REFER TO THE GROUNDS OF THE JUDGMENT OF 10 JANUARY 1985 , A COPY OF WHICH SHALL BE ANNEXED TO THE PRESENT JUDGMENT .

9 THE QUESTIONS SUBMITTED BY THE TRIBUNAL DE GRANDE INSTANCE , NANTES , MUST BE ANSWERED IN THE SAME TERMS AS IN THE JUDGMENT OF 10 JANUARY 1985 :

AS COMMUNITY LAW STANDS , THE SECOND PARAGRAPH OF ARTICLE 5 OF THE EEC TREATY , IN CONJUNCTION WITH ARTICLES 3 ( F ) AND 85 , DOES NOT PROHIBIT MEMBER STATES FROM ENACTING LEGISLATION WHEREBY THE RETAIL PRICE OF BOOKS MUST BE FIXED BY THE PUBLISHER OR BY THE IMPORTER AND IS BINDING ON ALL RETAILERS , PROVIDED THAT SUCH LEGISLATION IS CONSONANT WITH THE OTHER SPECIFIC PROVISIONS OF THE TREATY , IN PARTICULAR THOSE RELATING TO THE FREE MOVEMENT OF GOODS .

IN THE CONTEXT OF SUCH NATIONAL LEGISLATION , THE FOLLOWING CONSTITUTE MEASURES EQUIVALENT IN EFFECT TO QUANTITATIVE RESTRICTIONS ON IMPORTS , CONTRARY TO ARTICLE 30 OF THE EEC TREATY :

( A ) PROVISIONS WHEREBY THE IMPORTER RESPONSIBLE FOR COMPLYING WITH THE STATUTORY REQUIREMENT TO DEPOSIT ONE COPY OF EACH IMPORTED BOOK WITH THE AUTHORITIES , THAT IS TO SAY THE PRINCIPAL DISTRIBUTOR , IS RESPONSIBLE FOR FIXING THE RETAIL PRICES ;

( B)PROVISIONS REQUIRING THE RETAIL PRICE FIXED BY THE PUBLISHER TO BE APPLIED TO BOOKS PUBLISHED IN THE MEMBER STATE CONCERNED AND RE-IMPORTED FOLLOWING EXPORTATION TO ANOTHER MEMBER STATE , UNLESS IT IS ESTABLISHED THAT THOSE BOOKS WERE EXPORTED FOR THE SOLE PURPOSE OF RE-IMPORTATION IN ORDER TO CIRCUMVENT THE LEGISLATION IN QUESTION .

Decision on costs

COSTS

10 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE 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 ACTION 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 TRIBUNAL DE GRANDE INSTANCE , NANTES , BY JUDGMENT OF 22 NOVEMBER 1983 , HEREBY RULES :

( 1 ) AS COMMUNITY LAW STANDS , THE SECOND PARAGRAPH OF ARTICLE 5 OF THE EEC TREATY , IN CONJUNCTION WITH ARTICLES 3 ( F ) AND 85 , DOES NOT PROHIBIT MEMBER STATES FROM ENACTING LEGISLATION WHEREBY THE RETAIL PRICE OF BOOKS MUST BE FIXED BY THE PUBLISHER OR BY THE IMPORTER AND IS BINDING ON ALL RETAILERS , PROVIDED THAT SUCH LEGISLATION IS CONSONANT WITH THE OTHER SPECIFIC PROVISIONS OF THE TREATY , IN PARTICULAR THOSE RELATING TO THE FREE MOVEMENT OF GOODS .

( 2)IN THE CONTEXT OF SUCH NATIONAL LEGISLATION , THE FOLLOWING CONSTITUTE MEASURES EQUIVALENT IN EFFECT TO QUANTITATIVE RESTRICTIONS ON IMPORTS , CONTRARY TO ARTICLE 30 OF THE EEC TREATY :

( A ) PROVISIONS WHEREBY THE IMPORTER RESPONSIBLE FOR COMPLYING WITH THE STATUTORY REQUIREMENT TO DEPOSIT ONE COPY OF EACH IMPORTED BOOK WITH THE AUTHORITIES , THAT IS TO SAY THE PRINCIPAL DISTRIBUTOR , IS RESPONSIBLE FOR FIXING THE RETAIL PRICES ;

( B)PROVISIONS REQUIRING THE RETAIL PRICE FIXED BY THE PUBLISHER TO BE APPLIED TO BOOKS PUBLISHED IN THE MEMBER STATE CONCERNED AND RE-IMPORTED FOLLOWING EXPORTATION TO ANOTHER MEMBER STATE , UNLESS IT IS ESTABLISHED THAT THOSE BOOKS WERE EXPORTED FOR THE SOLE PURPOSE OF RE-IMPORTATION IN ORDER TO CIRCUMVENT THE LEGISLATION IN QUESTION .