WRITTEN QUESTION E-1179/02

by Jonas Sjöstedt (GUE/NGL) to the Commission

(25 April 2002)

Subject: Printing of recommended retail price on books sold on the internal market

In some Member States, but not others, recommended retail prices are printed on books. The Market Court in Sweden has now found in its judgment 2002/5 of 22 February 2002 that if publishers mark paperbacks with a recommended retail price, that measure is deemed tantamount to an agreement or concerted practice between undertakings, which is contrary to 6 § of the Swedish Competition Law.

The Swedish Competition Law was modelled on EC competition rules (Articles 81 and 82 of the Treaty of Amsterdam) and is to be interpreted on the basis of EC legislation and the case-law of the Court of Justice, while taking account of national conditions to some degree.

The matter has now been settled in Sweden by the judgment of the Market Court (there is no provision for appeal). However, does the Commission consider that publishers should be allowed to print recommended retail prices on books and is it acceptable, in the Commission's view, for the Member States to apply Articles 81 and 82 differently in this case?

Answer given by Mr Monti on behalf of the Commission

(14 June 2002)

The Commission takes the view that recommended retail prices printed on books may constitute, subject to the particular circumstances of the case, a restriction of competition within the meaning of Article 81(1) of the EC Treaty(1). However, the Commission has repeatedly made it clear in line with the case law, in particular, the Leclerc Court's judgment of 10 January 1985(2) that it does not object to national book price fixing based on agreements as long as they do not appreciably affect trade between Member States(3). On the other hand, national price fixing agreements might well violate the national competition rules since the latter even if shaped in line with Articles 81 and 82 of the EC Treaty do not foresee the criterion of affectation of intra-Community trade. This is also true for Article 6 of the Swedish Competition Act. However, in so far as the national courts directly apply Articles 81 and 82 of the EC Treaty to national book price fixing agreements they are invariably bound by the relevant case law of the European Court of Justice.

The application of national competition rules to book price fixing agreements may well differ from one Member State to the other. In this context, it is important to emphasise that the Swedish Market Court appears to have based its judgment exclusively on Article 6 of the Swedish Competition Act rather than Article 81 of the EC Treaty.

More importantly, potential differences in the application of national competition law to printed book price recommendations also flow from the respective Member States' acceptance or rejection of national book price maintenance systems. The majority of the Member States have adopted laws on nation-wide book price fixing or explicitly allowed publishers to agree on fixed retail prices for books for essentially cultural reasons. For instance, the French Loi Lang on fixed book prices even explicitly foresees an obligation by the publishers clearly to set out the retail price on the book cover, whereas the German competition rules contain an exception according to which publishers may agree on fixed retail prices (including the printing of that price on the book). Thus, only some Member States, such as Sweden, in which no price maintenance system exists, apply their competition rules to book price fixing agreements.

(1) See, in particular, paras. 47, 111 and 112 of the Commission's Notice Guidelines on Vertical Restraints, OJ C 291, 13.10.2000.

(2) Case 229/83, [1985] ECR 1.

(3) See recently Directorate General Competition's press release of 22 March 2002, IP/02/461.