C-254/87

My Lords, Aigle distribution admitted the facts alleged, but argued before the national court that the French legislation was contrary to Community law; the national court accordingly referred the following questions to the Court of Justice for a preliminary On 28 April 1987, the Syndicat des libraires ruling: de Normandie (Normandy Booksellers' Association) brought proceedings before the tribunal de grande instance, Alençon, against the Société L'Aigle distribution, centre Leclerc, Saint Sulpice sur Risle ('Aigle distribution') for selling books at prices lower than those permitted by Article 1. Does the fact that the freedom to fix 1 of French Law No 81-766 of 10 August prices is restricted to a single category of 1981, as amended by Law No 85-500 of 29 trader facilitate the establishment of May 1985. Those provisions require captive or controlled distribution publishers and importers of books to fix a networks and therefore constitute an retail price for the books which they publish infringement of the combined provisions or import; they provide that (subject to of Articles 3 (f), 5 and 85 of the EEC certain exceptions) retailers must charge a Treaty or at the very least detract from retail selling price of between 95 and 100% their effectiveness ? of the price fixed by the publisher or importer. The fifth paragraph of Article 1 provides that where books initially published in France are re-imported, the selling price to the public fixed by the importer shall be at least equal to that which has been fixed 2. Does the delegation of powers by French by the publisher; after the judgment of the law to certain traders, namely publishers, Court of Justice in Case 229/83 (Association infringe Article 86, and in the alternative des centres distributeurs Edouard Leclerc v 'Au Article 85, or at the very least detract blé verí SARL [1985] ECR 1 ('Leclerc from their effectiveness, by virtue of the Books')), Law No 85-500 added a sixth fact that the selling price is fixed within a paragraph to Article 1 whereby the single trade in the light of economic provisions of the fifth paragraph are not principles which are not determined by applicable to books imported from a competition or by the market? Member State of the EEC unless it is estab­ lished, in particular by the absence of actual marketing in that State, that the object of the operation was to evade the provisions of the article restricting the retail price to the public to between 95 and 100% of the price fixed by the publisher or importer in respect Aigle distribution proposes an affirmative of sales to the public. answer to both questions. The French

That ruling was confirmed, in relation to Article 1 in its original form, in the judgment of the Court in Case 299/83 In the present case the French legislation is (Leclerc v Syndicat des libraires de Loire- challenged as being contrary to Articles 85 Océan [1985] ECR 2515; see also Case and / or 86 of the EEC Treaty inasmuch as it 95/84 Darras and Tostain [1986] ECR facilitates conduct by undertakings in 2253). breach of those articles. It is said that the legislation of a Member State can constitute an infringement of Articles 85 and / or 86, read in conjunction with Articles 3 (f) and 5 of the Treaty, where it sufficiently favours In Case 355/85 (Cognet [1986] ECR 3231), or enables anti-competitive conduct by Article 1 in its amended form was chal­ undertakings. A consistent line of case-law lenged on the grounds of discrimination of the Court establishes that, whilst Articles inasmuch as it allowed the prices of books 85 and 86 are directed at undertakings, the published in France and re-imported from Treaty imposes a duty on Member States another Member State to be fixed freely by not to adopt or maintain in force any the importer whilst leaving the prices of measure which could deprive those books published in France and remaining in provisions of their effectiveness: paragraph France subject to the price fixed by the 31 of the judgment in Case 13/77 (INNO v publisher. The Court rejected that ATAB [1977] ECR 2115, at p. 2144); challenge, ruling: 'Neither Article 7 of the paragraph 71 of the judgment in Joined EEC Treaty nor any other provision or Cases 209 to 213/84 (Ministère public v principle of that Treaty applies to a Asjes [1986] ECR 1425); paragraph 10 of difference of treatment under legislation the judgment in Case 311/85 (Vereniging

It follows that the issue raised by the order for reference is in substance the same as that considered by the Court in relation to Articles 85 and 86 in Leclerc Books. Since no If, in the present case, it had been found as new relevant matters have been established, a fact that there had been conduct on the the Court's reasoning in that case and its part of undertakings contrary to Articles 85 ruling particularly at point 1 of the and / or 86 in relation to fixing French book operative part of the judgment continue to prices and if it had been found as a fact that apply. In my opinion the questions referred that behaviour was caused or facilitated by for a preliminary ruling in this case fall to the national legislation in question, perhaps be answered in the terms of point 1 of the even not prevented or controlled by national operative part of the Court's ruling in legislation, there might be grounds for Leclerc Books.

SYNDICAT DES LIBRAIRES DE NORMANDIE v L'AIGLE DISTRIBUTION

Accordingly in my opinion the questions referred for a preliminary ruling should be answered along the lines that:

'As Community law stands, the second paragraph of Article 5 of the EEC Treaty, in conjunction with Articles 3 (f) and 85 and 86, does not prohibit Member States from enacting legislation whereby the retail price of books must be fixed by the publisher or by the importer and is binding on all retailers, provided that such legislation is consonant with the other specific provisions of the Treaty, in particular those relating to the free movement of goods.'