C-160/86

OPINION OF SIR GORDON SLYNN —CASE 160/86

O P I N I O N OF ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 19 March 1987

My Lords, 'Do the Community law principles of equality and non-discrimination to be found in the Treaty establishing the European Economic Community prohibit the enactment of legislation in a Member State Mr Verbrugge is the manager of the creating in a single sector, namely the book Continent supermarket in Reims. He has trade, for identical or similar products a been charged with selling books at a price dual system of prices consisting, on the one which is less than that permitted by French hand, of fixed prices which may not be legislation, namely Law No 81-766 of 10 reduced by more than 5% for books August 1981, as amended by Law No published and sold within that Member 85-500 of 13 May 1985, along with its State without crossing an internal implementing Decree, No 85-556 of 29 Community border during the marketing May 1985. Those laws prohibit, subject to chain and, on the other hand, of uncon- certain exceptions, books published or trolled prices for, in particular, books imported into France within the previous published in France and re-imported from two years from being sold at a discount of another Member State?' more than 5% on the price fixed by the publisher or importer except where the books are imported from another Community country, after publication in such a country or after publication in and export from France to such a country.

France, are exported and re-imported. The Nothing in the written observations which result of the law, he says, is to abolish have been submitted nor in the oral competition as to price at the retail level and submissions today seems to me to provide to be discriminatory. grounds for the Court to depart from the position which it took in the Cognet and the Much of his argument seems to me to be Rousseau cases. directed to a criticism of the French legis- lation as such rather than as to its compati- bility with Community law. His arguments Reference has been made in these which deal with the compatibility of French proceedings to Article 3 (f), although that is law with Community law have been dealt not mentioned in the precise question. It with substantially by the Court's judgment seems to me, as I said in Cognet, that that in the Cognet case and were considered also Article is not one which can be relied on on in Case 168/86 (Rousseau v Procureur its own in proceedings between a Member Général, judgment of 25 February 1987 State and a trader in that State. (See also [1987] ECR 995). Case 229/83 Leclerc [1985] ECR 1.)

Accordingly, for the reasons given in the Cognet judgment, the answer to the question referred by the tribunal de police, Reims should be on the lines 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 re-imported 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.