Judgment of the Court (Third Chamber) 23 October 1986

In Case 355/85 REFERENCE to the Court under Article 177 of the EEC Treaty by the tribunal d'instance [District Court], Bressuire, for a preliminary ruling in the criminal proceedings pending before that court brought by

THE COURT (Third Chamber) composed of: Y. Galmot, President of Chamber, U. Everling and J. C. Moitinho de Almeida, Judges, Advocate General: Sir Gordon Slynn Registrar: K. Riechenberg, acting as Administrator

after considering the observations submitted on behalf of

Michel Cognet, by G. Blanchard and P. Jousset, avocats, at the oral proceedings,

the Commission of the European Communities, by D. Jacob, a member of its Legal Department, during both the written and the oral proceedings,

having regard to the Report for the Hearing and further to the hearing on 26 June 1986,

after hearing the Opinion of the Advocate General delivered at the sitting on the same day,

gives the following

JUDGMENT

Costs

1. By a judgment of 11 October 1985, which was received at the Court on 19 November 1985, the tribunal d'instance, Bressuire, referred to the Court for a preliminary ruling, under Article 177 of the EEC Treaty, a question on the interpretation of Articles 3 (f) and 7 of the EEC Treaty and the principles of equality and non-discrimination, in order to enable it to determine whether national legislation requiring retailers to sell books at a fixed retail selling price is compatible with Community law.

2. The question was raised in the context of criminal proceedings brought against Michel Cognet, who was charged with having sold books in the Centre Leclerc, Thouars, of which he is the manager, at a 20% discount on the selling prices fixed by the publisher, an offence contrary to the provisions of Law No 81-766 of 10 August 1981 on prices for books (JORF of 11 August 1981).

3. According to the French Law of 10 August 1981 all publishers or importers of books are required to fix the retail selling price for the books which they publish or import. Retailers must sell at an actual retail selling price of between 95 and 100% of the fixed price. In the event of infringement of the provisions of the Law, provision is made for criminal prosecution.

4. As regards imported books, Article 1 (5) of the Law of 10 August 1981 provides that with regard to the importation of books published in France, the retail selling price fixed by the importer shall be no lower than that fixed by the publisher.

5. In its judgment of 10 January 1985 in Case 229/83 (Association des centres Edouard Ledere and Others v Au blé vert and Others, [1985] ECR 1) delivered in a case which also concerned the Law of 10 August 1981, the Court ruled that

6. The tribunal d'instance, Bressuire, found that under those provisions the price of books published in France and reimported from a Member State was not regulated whereas the price of books published in France which had not been put into circulation outside France were subject to a system of fixed prices. Accordingly, French distributors were exposed to the disadvantages of competition without their being enabled to meet that competition with equivalent means and French traders and foreign exporters to France were no longer treated equally. In those circumstances it referred the following question to the Court for a preliminary ruling:

7. In so far as the question refers to Article 3 (f) of the EEC Treaty concerning the institution of a system ensuring that competition in the common market is not distorted, it must be pointed out that the Court has already given a ruling in its judgment of 10 January 1985 on the interpretation of Articles 3 (f), 5 and 85 of the EEC Treaty with regard to national legislation and rules concerning the fixing of the retail selling price of books by publishers or importers. It is not apparent from the judgment of the tribunal d'instance, Bressuire, that that Court intended to put that question before the Court of Justice once again. It is therefore not necessary to examine the arguments concerning the elimination of free competition concerning prices put forward by Mr Cognet during the oral proceedings.

8. The question referred to the Court of Justice seeks to ascertain whether by virtue of the principles of equality and non-discrimination contained in the EEC Treaty and in particular in Article 7 thereof it is not permissible for legislation of a Member State to bring about a situation in which, on the retail sale of books published and printed in that Member State, there is a difference in treatment depending on whether the books are put on to the market of that Member State directly or whether they were reimported after first being exported to another Member State, the selling price in the former case being fixed and in the latter unregulated.

9. Such a difference in treatment relates to a distinction between goods according to the way in which they are marketed and between retailers according to the goods which they sell. On the other hand, in such a situation no distinction is made between traders according to their nationality or even according to the place in which they are established. There is therefore no discrimination on grounds of nationality, even disguised or indirect, within the meaning of Article 7 of the EEC Treaty.

10. It should be added ¡that Article 30 of the EEC Treaty does not forbid such a difference of treatment. The purpose of that provision is to eliminate obstacles to the importation of goods and not to ensure that goods of national origin always enjoy the same treatment as imported or reimported goods. The absence of restrictions as regards the selling price of reimported books does not prejudice the sale of such books. A difference in treatment between goods which is not capable of restricting imports or of prejudicing the marketing of imported or reimported goods does not fall within the prohibition contained in Article 30.

11. As regards the general principle of non-discrimination, it must be observed that Community law does not apply to treatment which works to the detriment of national products as compared with imported products or to the detriment of retailers who sell national products as compared with retailers who sell imported products and which is put into effect by a Member State in a sector which is not subject to Community rules or in relation to which there has been no harmonization of national laws.

12. The reply to the question referred to the Court of Justice must therefore be that neither Article 7 of the EEC Treaty nor any other provision or principle laid down in that Treaty applies to a difference of treatment under legislation which provides that the retail selling price of books is to be fixed by the publisher or the importer of a book, which is binding on all retailers and according to which the price of books published and printed in the Member State concerned may be freely determined where the books are reimported after having first been exported to another Member State, whereas the price is fixed by the publisher where the books have not crossed a border within the Community in the course of being marketed.

13. The costs incurred by the Commission of the European Communities, which has submitted observations, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings brought before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Third Chamber), in answer to the question referred to it by the tribunal d'instance, Bressuire, by judgment of 11 October 1985, hereby rules:

1 Language of the Case: French.