Opinion of Mr Advocate General Sir Gordon Slynn delivered on 19 March 1987. - Ministère public v Jacques Verbrugge. - Reference for a preliminary ruling: Tribunal de police de Reims - France. - Fixed prices for books. - Case 160/86.



European Court reports 1987 Page 01783



Opinion of the Advocate-General

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My Lords,

Mr Verbrugge is the manager of the Continent supermarket in Reims . He has been charged with selling books at a price which is less than that permitted by French legislation, namely Law No 81-766 of 10 August 1981, as amended by Law No 85-500 of 13 May 1985, along with its implementing Decree, No 85-556 of 29 May 1985 . Those laws prohibit, subject to certain exceptions, books published or imported into France within the previous two years from being sold at a discount of more than 5% on the price fixed by the publisher or importer except where the books are imported from another Community country, after publication in such a country or after publication in and export from France to such a country .

There is no dispute in the present case as to the facts . Finding competition from other booksellers who apparently charged lower prices than those laid down by the law, Mr Verbrugge offered his customers the choice of the price fixed by law and a price with a 20% discount on the recommended selling price . Although there is no evidence of an actual sale in this case, it is obvious that many, if not all, customers would choose the lower price .

The tribunal de police, Reims, before which the charges came, has referred the following question to the Court :

"Do the Community law principles of equality and non-discrimination to be found in the Treaty establishing the European Economic Community prohibit the enactment of legislation in a Member State creating in a single sector, namely the book trade, for identical or similar products a dual system of prices consisting, on the one hand, of fixed prices which may not be reduced by more than 5% for books published and sold within that Member State without crossing an internal Community border during the marketing chain and, on the other hand, of uncontrolled prices for, in particular, books published in France and re-imported from another Member State?"

The point at issue in this case is essentially the same as that which was raised in Case 355/85 Driancourt v Cognet, judgment of 23 October 1986 .

Counsel for Mr Verbrugge has put forward arguments to show how the French law produces different results for the bookseller who deals in books published in France, which have never been out of France, and the bookseller who sells books which are imported or which, having been published in France, are exported and re-imported . The result of the law, he says, is to abolish competition as to price at the retail level and to be discriminatory .

Much of his argument seems to me to be directed to a criticism of the French legislation as such rather than as to its compatibility with Community law . His arguments which deal with the compatibility of French law with Community law have been dealt with substantially by the Court' s judgment in the Cognet case and were considered also in Case 168/86 Rousseau v Procureur Général, judgment of 25 February 1987 .

Nothing in the written observations which have been submitted nor in the oral submissions today seems to me to provide grounds for the Court to depart from the position which it took in the Cognet and the Rousseau cases .

Reference has been made in these proceedings to Article 3 ( f ), although that is not mentioned in the precise question . It seems to me, as I said in Cognet, that that Article is not one which can be relied on on its own in proceedings between a Member State and a trader in that State . ( See also Case 229/83 Leclerc (( 1985 )) ECR 1 .)

Accordingly, for the reasons given in the Cognet judgment, the answer to the question referred by the tribunal de police, Reims should be on the lines that :

Neither Article 7 of the EEC Treaty nor any other provision or principle laid down in 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 .

The Commission' s costs of these proceedings are not recoverable . Mr Verbrugge' s costs fall to be dealt with by the national court from which the reference comes .