Opinion of Mr Advocate General
Mr President,
Members of the Court,
1. The Cour d'Appel [Court of Appeal], Poitiers, has referred to the Court a question of interpretation which has major implications not only in view of the principles involved but also because national courts which are trying similar actions are awaiting the Court's decision.
2. Contrary to what its title might suggest, the Law of 10 August 1981 does not seek to fix book prices pre-emptorily. Rather, it requires publishers and importers to fix a retail price at which retailers are obliged to sell, subject to the possiblity of granting discounts of no more than 5% of that price.
3. Having been prohibited by injunction from selling books at prices lower than the retail price fixed by the publishers, Association des Centres distributeurs Édouard Leclerc (hereinafter referred to as Centres Leclerc) appealed to the Cour d'Appel, Poitiers. The latter questioned whether the Law of 10 August 1981 was compatible with the Community rules on free competition, in view of its provisions concerning imported books, and submitted the following question to the Court:
4. Since the observations submitted by Centres Leclerc, the French Government and the Commission are exhaustively summarized in the Report for the Hearing, I will refer the Court to that document and simply rehearse the main arguments put before the Court, notably in reply to questions put at the hearing, in order to identify the approach adopted by each party with a view to resolving the question of compatibility raised.
5. As far as the French Government and the Commission are concerned, Articles 3 (f) and 5 do not apply. Instead, the Law of 10 August 1981 should be examined in the light of the principles governing the free movement of goods, as interpreted by the Court of Justice.
6. The Law of 10 August 1981 applies to all books, whatever their origin, and requires all retailers to apply the price fixed by the publisher or importer, subject to a maximum discount of 5 %.
7. As regards contractual systems of resale price maintenance for books, the Court's judgment in VBVB and VBBB v Commission (concerning books published in Dutch) has some relevance to the case at issue, both in view of the object of the agreement between the Belgian and the Netherlands associations and in view of the limits which the Court set to its appraisal.
8. Let us now review the cases in which the compatibility with Community law of a public or semipublic system of resale price maintenance was in issue.
9. In van Tiggele the Court was called upon to examine a system of price maintenance operated by a public body in the field of the retail sale of spirits not subject to a common organization of the market.
10. Comparison of the Inno and van Tiggele judgments brings out the respective functions of each of the prohibitions laid down in Article 30 and Articles 85 and 86 of the Treaty where a national price-fixing system imposed by the State is at issue:
11. What lessons can be drawn in the final analysis from the Court's relevant decisions, taken together, with a view to settling the question now before the Court?
12. In order to assess the conformity with Community law of legislation of the kind described, which is not, as such, specifically provided for in the Treaty, guidance must be sought in the primary sources of law and in the previous decisions of the Court.
13. In my view, therefore, the principles laid down in the Court's previous judgments are sufficiently general to apply to a semipublic system which has the effect of rendering unnecessary behaviour of the type in question which is prohibited by Community law.
14. In order to assess the competition rules introduced by the relevant French legislation, it must be investigated whether the system brought in by the law is itself restrictive of competition and, if so, whether the resulting restriction is such as to affect trade between Member States.
15. Like French books, foreign books are subject in France to the principle of fixed retail prices. However, the obligation to fix the price falls not on the foreign publisher but on the main importer/distributor.
16. It is now necessary to examine, at the retail level, the competition regime established by the 1981 Law and to consider what might be its effects on intra-Community trade.
17. As regards re-imported French books, we may now examine whether the provisions of the 1981 Law that apply to them affect trade between Member States.
18. In the light of the above, what answer would it be appropriate to give to the question submitted by the national court?
19. Yet application of that principle cannot ignore the imperatives to which the Member States are subject in those areas which are their own responsibility.
20. Hence it is for the Community institutions to play the respective roles assigned to them by the Treaty, having regard to the importance of the subject in question and the situation existing in the various countries of the Common Market.
21. In the light of the foregoing it is suggested that the Court should rule that:
1 Translated from the French.
2 Journal Officiel de li République Française of 11 August 1981, p. 2198.
3 Article 1 (1) and (4).
4 Article 2 of lhe Law of 10 August 1981.
5 Ibid., Article 3.
6 Ibid., Article 1, first and last paragraphs.
8 Article 4 of Decree No 81-1068 of 3 December 1981, Journal Officiel de la République Française of 4 December 1981, p. 3305.
9 Casc 120/78, REWE-Zciilral AG v Bundeimonopoher-Wallung fir Branntwein, [1979] ECR 649.
10 The term semipublic is used to denote a price maintenance system in which the prices are not fixed directly by law.
11 Judgment of 17 January 1984 in Joined Cases 43 and 63/82, [1984] ECR 19, paragraph 6 in particular.
12 Case 13/77, [1977] ECR 2115, paragraphs 5 to 12.
13 Case 82/77, [1978] ECR 25, paragraphs 3 to 9.
14 Judgment of 5 April 1984 in Joined Cases 177 and 178/82, [1984] ECR 1797, paragraph 16.
15 Commission Decision No 82/123/EEC, Official Journal 1982, L 54, p. 36.
16 Joined Cases 43 and 63/82, loc. cit., paragraphs 31, 44 and 58.
17 Whereby publishers are able to use the profits gained from the sale of successful books to compensate for the problems posed by books that are difficult to sell.
18 Joined Cases 43 and 63/82, loc. cit., paragraph 59.
19 Decision 82/123/EEC, loc. cit., last subparagraph of paragraph 60.
20 Joined Cases 177 and 178/82, loc. cit., paragraph 45.
21 Case 13/77, loc. cit.
22 See the reference made thereto by Mr Advocate General Capotorti in Case 82/77 (Openbaar Mintitene v van Tiggele, [1978] ECR 25, at pp. 45-66).
23 Note, however, that in the judgment in Case 78/70 (Deutsche Grammophon Gesellschaß w Metro-SB-Großmärkte, [1971] ECR 487) the Court adopted an identical approach in examining the scope under Community law of an exclusive right conferred by national law (paragraphs 7 and 8 and opinion of K. Roemer, p. 507).
24 Case 13/77, loc. cit., paragraphs 28 to 33.
25 Ibid., paragraphs 35 and 52 to 54 of the decision and paragraph 3 of the operative part of the judgment.
26 Ibid., paragraph 34 of the decision and paragraph 1 of the operative part of the judgment.
27 Case 13/77, ioc. cit., paragraph 2 of the operative part of the judgment.
28 Case 82/77, loc. cit., paragraphs 3 to 9.
29 Case 82/77, loc. cit., paragraph 14.
30 Cf. Imto v ATAB, paragraph 52.
31 Casc 82/77, loc. cit., paragraph 18 of the decision and paragraph 1 of the operative part of the judgment.
32 Ibid., opinion of F. Capotorti, pp. 47 and 48.
33 Joined Cases 177 and 178/82, loc cit.
34 Article 30 of the 1964 Law.
35 Joined Cases 177 and 178/82, loc. cit., paragraph 1 of the operative part of the judgment and paragraphs 11 and 12 of the decision.
36 Ibid., paragraph 24.
37 Case 14/68, [1969] ECR 1, paragraph 6.
38 Case 26/76, Metro SB-Großmärkte GmbH v Commission, [1977] ECR 1875, paragraph 20.
39 Case 13/77, loc. cit., paragraph 31.
40 First paragraph of Article 1 of the Law of 10 August 1981.
41 Article 8 of Law No 341 of 21 June 1943, to which Article 4 of the abovementioned Decree No 81-1068 refers.
42 Case 13/77, loc. cit., paragraphs 33, 34, 37 and 38 of the decision and paragraph 2 of the operative part of the judgment.
43 Last paragraph of Article I.
44 Case 2/73, Geddo v Ente Nazionale Risi, [1973] ECR 865, Opinion p. 885.
45 Emphasis added.
46 Case 2/73, loc. cit., Opinion, p. 885.
47 It is noted in passing that such an approach corresponds, in the sphere of competition to which our appraisal of the 1981 Law has led us, to the stance which the Court has adopted with regard to barriers to the free movement of goods ever since its judgment in the Cassis de Dijon case (Case 120/78, loc. cit.).
48 Official Journal 1981 C 50, p. 103.