WRITTEN QUESTION E-0773/98

by Jessica Larive (ELDR) to the Commission

(18 March 1998)

Subject: Book price agreements and Article 128 of the Maastricht Treaty

The Commission recently set up a procedure to put an end to cross-border fixed book prices between Germany and Austria. The Commission maintains that such price agreements are a violation of European competition law.

On 30 June 1997 the Cultural Affairs Council requested the Commission to carry out a study, or to have a study carried out, into the relationship between the cultural affairs paragraph in the Maastricht Treaty and the Treaty of Rome. To my surprise the Commission has only recently issued the call for tenders.

On 17 February 1998 the Commission, in the person of Mr van den Broek, confirmed to Parliament in Strasbourg that Article 128(4) of the Treaty of Maastricht makes it obligtory to take into account, on a systematic basis, the consequences of Community policy for cultural aspects.

1. Does the Commission agree that the decision-making process should take into account not only the economic arguments but also cultural aspects?

2. Why did the Commission wait more than six months before issuing a call for tenders for the study of the relationship between the cultural affairs paragraph in the Maastricht Treaty and the Treaty of Rome?

3. Does the Commission not think it would be sensible and logical to wait for the results of the study before establishing a procedure intended, on the basis of exclusively economic considerations, to put an end to cross-border fixed price agreements?

Answer given by Mr Van Miert on behalf of the Commission

(28 April 1998)

It is self evident that the Commission is prepared to take account of cultural aspects in its decision making under EC Treaty provisions, such as in application of the Community competition rules. Pursuant to Article 128(4) EC Treaty it also has the obligation to do so. In fact, as recognised by the Court of justice, the Commission had already taken account of cultural aspects in its previous decisions concerning cross-border fixed book price systems, even before the introduction of Article 128(4) in the EC Treaty (opinion of Advocate-general Lenz (ECR 1995 p. I-52) in the net book agreement case concerning the British-Irish fixed book price system that the Commission had taken cultural aspects into account when it took its decision in this case and had fulfilled its duty to do so). This duty flowed already from the case law of the Court of justice before the existence of Article 128(4) EC Treaty.

The Commission has exclusive competence to exempt agreements from the scope of the general prohibition provision of Article 85(1) EC Treaty if the conditions of Article 85(3) are met. The Commission can, within the scope of its policy discretion under Article 85(3) and in relevant cases take account of cultural arguments. This does not imply that any agreement which is said to be justified on cultural grounds can be exempted. For instance, Article 85(3) allows only those agreements to be exempted for which the alleged positive effects, whether cultural or otherwise, can be clearly demonstrated, and it requires that the means employed to attain these effects are the least restrictive to competition. The readiness of the Commission to take account of cultural aspects in its decision making, can not result in a situation where it uses it policy discretion to take decisions which are contrary to other Treaty provisions. It is also useful to mention that Advocate-general VerLoren van Themaat in the VBBB/VBVB case (see ECR 1984 p.89) concerning the Dutch-Flemish fixed book price system was of the opinion that it is unnecessary to consider cultural aspects before it had been shown that the acclaimed cultural benefits of fixed book prices for the production and distribution of books actually exist. In this case, the Court of justice confirmed in its judgement that the Commission was right in saying that such benefits did not exist.

After an extensive investigation since 1993 of all relevant aspects of the German-Austrian system of fixed book prices, the Commission opened proceedings because it had reached the provisional conclusion that the arguments did not justify an exemption. Currently, the Commission awaits the reaction of the parties. Only after a careful examination of this reaction and those of interested third parties, will it take a final decision.

When tendering for the study the Commission had of course to respect the relevant procedures.

The Commission has always said that the initiative of the Council to request the Commission to conduct a study must not lead to delays in the proceedings regarding individual cases concerning fixed book price systems. Of course, all elements at the disposal of the Commission will be taken into account while the Commission's procedure is going on.