WRITTEN QUESTION E-0199/98 by Hilde Hawlicek (PSE) to the Commission (11 February 1998)

Subject: Books and the cultural heritage

In his speech to the Frankfurt book fair in October 1997, Commissioin President Jacques Santer said that he regarded books as 'part of our cultural heritage and as economic factors'. However, on 14 January 1998 Commissioner Karel van Miert instituted proceedings against book price agreements even before the Council of Ministers of Cultural Affairs had received the expert opinion it had requested on whether such agreements can be justified by Article 128 EC.

What protection does the Commission President believe the Commission is providing for 'books as part of the cultural heritage'?

Is the Commissioner also aware of the study carried out by Ulrich Everling, a former judge at the European Court of Justice, who concludes that book price agreements as practised in Germany and Austria should not be regarded as incompatible with the Common market pursuant to Article 85(1) EC Treaty, provided books originally subject to price agreements are reimported from countries other than the Member States and are not subject to further price agreements provided they are not transactions for the purpose of evading the law? If this opinion is not accepted, the requirements for derogation pursuant to Article 85(3) EC Treaty are fulfilled on the basis of an assessment of competition law which takes account of the cultural aspect of book price agreements.

Answer given by Mr Van Miert on behalf of the Commission (24 March 1998)

The Commission has consistently maintained that the Council's initiative in instructing the Commission to prepare a report pursuant to Article 152 of the EC Treaty should be considered independent of the competition proceedings concerning the German/Austrian price-fixing scheme for books ('Buchpreisbindung') provided that the proceedings in question are not impeded as a result. In this competition case, in which the publishers submitted the notification in the spring of 1993 and for which the Commission is solely competent, formal proceedings had to be instituted after the Commission had made a careful examination of the publishers' arguments and come to the provisional conclusion that exemption was not justified.

The report was submitted by the parties to the proceedings. It concludes that Article 85(1) is no longer applicable to the German/Austrian price-fixing scheme for books because Article 128(4) had been inserted into the EC Treaty by the Treaty on European Union. This contradicts the settled case law of the Court of Justice as the report's author acknowledges (he states that his opinion goes beyond previous case law and decision-making practice). In 1995, quite some time after Article 128(4) had been inserted, the Court of Justice based itself on the self-evident fact that Article 85(1) was applicable to the cross-border price-fixing scheme involving the United Kingdom and Ireland. The possible advantages of any price-fixing agreement are always initially examined under Article 85(3).

It is unclear from the Honourable Member's question why she assumes that the conditions for exemption were met. As stated above, the Commission reached its provisional conclusion that the conditions for exemption had not been met after a careful examination of all the arguments put forward and on the basis of statistically sound data.