WRITTEN QUESTION P-1993/03

by Benedetto Della Vedova (NI) to the Commission

(10 June 2003)

Subject: Abuse of dominant position in the distribution of daily newspapers and periodicals

A few weeks ago the Italian publisher Ilisso announced the launch of a commercial initiative entailing the sale of its books (classics of Sardinian literature) at newsagents, where purchasers of the books would be entitled to a discount of EUR 0,90 on the purchase of any Italian or foreign newspaper.

This project was challenged by the FIEG (Italian federation of newspaper publishers), which sent a warning letter to the publisher and distributors claiming: (a) that the link between a book and a daily newspaper would constitute an alteration of the product (in this case the newspaper) and the newspaper publisher might not want the newspaper to be associated with the book; (b) the initiative would constitute an infringement of Legislative Decree No 170 of 24 April 2001, which stipulates that the price of daily newspapers is fixed by the producer and cannot be altered; (c) the initiative would infringe the national agreement between publishers and sellers of newspapers and periodicals.

Following this warning the press distribution agencies decided to block Ilisso's initiative.

In view of the fact that the putative alteration of the product cannot be confirmed (since there is no link between the book and a specific newspaper), the price of the newspaper is not actually altered and the blocking of the initiative by the FIEG and the distributors makes Ilisso unable to carry out this special offer in relation to either Italian or other European newspapers, does the Commission not consider that the block constitutes an abuse of a dominant position contrary to Article 82 of the EC Treaty?

Answer given by Mr Monti on behalf of the Commission

(3 July 2003)

The Honourable Member seeks to know whether the measures taken by the Italian federation of newspaper publishers (FIEG) as well as Italian newsagents to prevent the Italian book publisher Ilisso from marketing its books in combination with the sale of discounted national and foreign newspapers are compatible with Article 82 of the EC Treaty. The discount practice forms an inherent part of a promotion strategy by Ilisso and, according to the FIEG, would constitute an infringement of inter alia the applicable national laws on resale price maintenance for the distribution of press products.

So far, the Commission has been unaware of the existence of such practices on the relevant Italian markets.

Furthermore, the Commission wishes to recall that distortions of competition which directly flow from national laws including those on fixed prices for print media products are in principle not caught by Article 82 of the EC Treaty but rather by the EC Treaty's provisions on the free circulation of goods and the freedom to provide services. The mere reliance by the FIEG and/or the Italian newsagents on the applicable national legal rules governing the obligation to respect inter alia the fixed retail prices for press products is thus not liable to amount to an infringement of Article 82 of the EC Treaty. Even assumed that some autonomous abusive behaviour is identifiable quod non it is also to be reminded that the wording of Article 82, as opposed to that of Article 81 of the EC Treaty, does not cover behaviour of associations of undertakings, such as the FIEG, being the only possible author of such potential abuse in the case at issue. Moreover, publishers' associations are not normally active as economic operators on the relevant markets for publishing and distribution of books and newspapers but merely represent the collective interests of their members. They are thus by definition unable to hold a dominant position in the relevant markets and to abuse market power within the meaning of Article 82 of the EC Treaty.

With respect to the EC Treaty's provisions on the free circulation of goods and the freedom to provide services, in the current case, the action by the FIEG appears to be based on the FIEG's interpretation of Italian law which might be subject to proceedings before the Italian courts. On that basis, the Honourable Member will understand that it would be inappropriate for the Commission to take a position at the present stage as to whether the application of the underlying provisions of Italian law represents an Internal Market restriction and then to proceed with a premature examination as to whether such an alleged restriction is compatible with the provisions on free movement enshrined in the EC Treaty.