Mr Driancourt, Commissioner of Police, Thouars, carrying out the duties of Public Prosecutor v Michel Cognet (355/85)

Contents

Judgment of the Court (Third Chamber)23 October 1986^noteIn Case 355/85REFERENCE 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 byMr Driancourt, Commissionner of Police, Thouars, carrying out the duties of Public Prosecutor,vMichel Cognet, residing at Centre Leclerc, Sainte Verge,THE COURT (Third Chamber)composed of: Y. Galmot, President of Chamber, U. Everling and J. C. Moitinho de Almeida, Judges,Advocate General: Sir Gordon SlynnRegistrar: K. Riechenberg, acting as Administratorafter considering the observations submitted on behalf ofMichel 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

1By 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.

2The 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).

3According 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.

4As 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’.

5In 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‘provisions requiring the retail price fixed by the publisher to be applied to books published in the Member State concerned and re-imported following exportation to another Member State, unless it is established that those books were exported for the sole purpose of re-importation in order to circumvent the legislation in question’constitute measures having an effect equivalent to quantitative restrictions on imports, contrary to Article 30 of the EEC Treaty.As a result of that judgment a sixth paragraph was added to Article 1 of the Law of 10 August 1981 by Law No 85-500 of 13 May 1985 which provides that the aforementioned provisions of Article 1 (5)‘shall not apply to books imported from a Member State of the European Economic Community unless it is established, inter alia by the fact that the books have not in fact been marketed in that State, that the operation was intended to remove the retail sale of the said books from the scope of application of the provisions of the fourth paragraph of this article’,in other words to circumvent the provisions concerning the retail price which retailers are required to charge.

6The 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:‘Do the Community principles of equal treatment and non-discrimination as expressed in particular in Articles 3 (f) and 7 of the EEC Treaty prohibit the enactment of legislation in a Member State creating in a single sector, namely the book trade, for products which are identical or similar, a double system of prices consisting of:(i) fixed prices which may not be reduced by more than 5% for books published and sold as such without having crossed a Community border at the marketing stage;(ii) non-regulated prices, in principle without any limit, inter alia for books published in France and reimported from another Member State?’

7In 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.

8The 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.

9Such 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.

10It 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.

11As 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.

12The 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.

Costs

13The 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.

Operative part

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: Neither Article 7 of the EEC Treaty nor any other provision or principle of 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.

Delivered in open court in Luxembourg on 23 October 1986.