Report for the Hearing delivered in Case 168/86

I — Facts and procedure

1. The French legislation on fixed prices for books (Law No 81-766 of 10 August 1981), as amended by Law No 85-500 of 13 May 1985 as a result of the Court's judgment of 10 January 1985 in Case 229/83 Association des centres distributeurs Edouard Ledere and Others v Sàri ‘Au blé vert’ and Others [1985] ECR 1, is set out in the Report for the Hearing in Case 355/85 Driancourt v Cognet [1986] ECR 3231, which is attached to the Court's judgment of 23 October 1986 in that case. Reference is made to that Report for the Hearing.

2. Yvette Rousseau, managing director of SA Paris Distribution Centre Leclerc de la Bottière, was prosecuted for infringing the aforesaid legislation. It is not disputed that in the store of which she was in charge books were offered for sale at a discount of more than 5% off the price fixed by the publisher, contrary to the aforesaid legislation. By judgment of 29 October 1985, the tribunal de police [Local Criminal Court], Nantes, acquitted the defendant on the ground, first, that the provisions concerning a single price for books were inapplicable in principle to books published in France and re-imported from another Member State, and secondly that it did not have sufficient evidence to identify which books published in France had been re-imported. The procureur général [Public Prosecutor] appealed against that judgment. The cour d'appel, Rennes, hearing the appeal, considered that it was necessary to determine whether the relevant provisions of the French legislation are compatible with Community law, when their effect is to place at a disadvantage books published and marketed in France without being exported, in so far as they are exposed to unrestricted competition from the same books which have been exported and then re-imported. Accordingly, by a judgment of 16 May 1986, the cour d'appel stayed the proceedings and referred to the Court the following question for a preliminary ruling:

‘Must Articles 3 (f) and 7 of the EEC Treaty be interpreted as prohibiting the establishment on the territory of a single Member State, in respect of books published by the same publisher, of two separate sets of legal rules — maximum discount and complete freedom of prices — whose determination and application depend on whether or not books sold in that State have been exported and then re-imported?’

3. The judgment of the national court was received at the Court Registry on 10 July 1986. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by Mrs Rousseau, represented by Messrs Ménard and Quimbert of the Nantes Bar, and by the Commission of the European Communities, represented by Daniel Jacob, a member of its Legal Department. The Court of Justice notified the cour d'appel, Rennes, of its judgment of 23 October 1986 in Case 355/85 Driancourt v Cognet, whereupon that court replied that it wished to maintain its request for a preliminary ruling. On hearing the repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory enquiry and, in accordance with Article 95 (1) of the Rules of Procedure, assigned the case to the Third Chamber.

II — Written observations submitted by the parties

1. Observations submitted by Mrs Rousseau

Mrs Rousseau refers to the Court's judgment of 10 January 1985 in Case 229/83, in which the Court gave a ruling on the interpretation of Article 30 of the EEC Treaty in relation to the legislation concerned; she considers that that legislation is also incompatible with Article 7 of the EEC Treaty, which prohibits discrimination on grounds of nationality, inasmuch as it places at a considerable disadvantage books published in France and never exported, since the sale of such works is adversely affected by competition from the same books published in France, exported and then re-imported and sold at a price freely determined by the retailer. The legislation concerned is therefore incompatible with Articles 7 and 30 of the EEC Treaty.

2. Observations of the Commission

The Commission's observations are identical to those which it submitted in Case 355/85 Driancourt v Cognet and summarized in the Report for the Hearing in that case, to which reference is made.

U. Everling

Judge-Rapporteur

1 Language of the Case: French.