Case C-533/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 29 November 2007 — Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst
Date: 2007-11-29
Institutions: Court of Justice
Subjects: intellectual property, interpretation of the law, patents licence, provision of services

9.2.2008

EN

Official Journal of the European Union

C 37/15

Parties to the main proceedings

Applicant: Fachverband der Buch- und Medienwirtschaft

Defendant: LIBRO Handelsgesellschaft mbH

Questions referred

1. Is Article 28 EC to be interpreted as meaning that

it
precludes the application per se of national provisions which
oblige only importers of German language books to fix and
to publish a retail price for books imported into Austria
which is binding on the retailer, where the importer cannot
fix a retail price which is lower than the retail price fixed or
recommended by the publisher for the State in which the
book is published, or lower than the retail price recom-
mended for his national territory by a publisher whose seat
is not in the territory of a Contracting Party to the Agree-
ment on the European Economic Area (EEA), less any value
added tax such price includes, but, by way of exception,
permit an importer who purchases in the territory of a
Contracting Party to the EEA at a price lower than the usual
purchase prices to sell at less than the price fixed or recom-
mended by the publisher for the State of publication — or
in the case of re-imports the price fixed by the Austrian
publisher — by an amount proportionate to the commercial
advantage he has obtained?

2. If the first question is answered in the affirmative:

Is the national statutory obligation to sell books at the fixed
price which, according to the first question, is per se incom-
patible with Article 28 EC — in any event on the basis that
it constitutes selling arrangements which infringe free move-
ment of goods — justified by reference to Article 30 or
Article 151 EC, on the basis that its purpose is, very gener-
ally, described as the need to have regard to ‘the status of
books as cultural assets, consumers'
interest in reasonable
prices for books, and the commercial characteristics of the
book trade’, for example having regard to a general interest
in encouraging the production of books, a diversity of titles
at regulated prices, and a diversity of bookshops, notwith-
standing the lack of empirical data which could prove that a
statutory obligation to sell books at the fixed price is a
suitable means for achieving the intended purposes?

3. If the first question is answered in the negative:

Is the national statutory obligation to sell books at the fixed
price, as described in the first question, compatible with Arti-
cles 3(1)(g) EC, 10 EC and 81 EC, notwithstanding that in
terms of time and substance there was a seamless transition
from them to the previous contractual obligation on book-
sellers to sell at prices fixed by publishers for published
works
(the 1993 reverse collection scheme), and they
replaced this contractual scheme?

Reference for a preliminary ruling from the Oberster
Gerichtshof (Austria) lodged on 29 November 2007 —
and Thomas Rabitsch v Gisela
Falco Privatstiftung

Weller-Lindhorst

(Case C-533/07)

(2008/C 37/20)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Falco Privatstiftung, Thomas Rabitsch

Defendant: Gisela Weller-Lindhorst

Questions referred

1. Is a contract under which the owner of an incorporeal right
grants the other contracting party the right to use that right
(a licence agreement) a contract regarding ‘the provision of
services’ within the meaning of Article 5(1)(b) of Council
Regulation (EC) No 44/2001 of 22 December 2000 on juris-
diction and the recognition and enforcement of judgments in
civil and commercial matters (the Brussels I Regulation) (1)?

2. If Question 1 is answered in the affirmative:

2.1. Is the service provided at each place in a Member State
where use of the right is allowed under the contract
and also actually occurs?

2.2. Or is the service provided where the licensor is domi-
ciled or, as the case may be, at the place of the licensor's
central administration?

2.3. If Question 2.1 or Question 2.2 is answered in the affir-
mative, does the court which thereby has jurisdiction
also have the power to rule on royalties which result
from use of the right in another Member State or in a
third country?

3. If Question 1 or Questions 2.1 and 2.2 are answered in the
negative: Is jurisdiction as regards payment of royalties under
Article 5(1)(a) and (c) of the Brussels I Regulation still to be
determined in accordance with the principles which result
from the case-law of the Court of Justice on Article 5(1) of
the Convention of 27 September 1968 on Jurisdiction and
the Enforcement of
Judgments in Civil and Commercial
Matters (the Brussels Convention)?

(1) OJ 2001 L 12, p. 1.