Brussels, 25/03/2002 (Agence Europe) - On Friday, the European Commission decided to no longer pursue competition proceedings regarding the German book price fixing system (so-called 'Sammelrevers'). Following the sending of a Statement of Objections in July 2001, the Börsenverein des Deutschen Buchhandels e.V. (German publishers' and booksellers' association), as well as the publisher and bookseller in question, submitted an Undertaking (see annex) which meets fully and definitively the objections raised by the Commission.
The Commission in July 2001 with a Statement of Objections initiated proceedings triggered by indications that the German publishers and booksellers with the participation of the Börsenverein des Deutschen Buchhandels e.V. (German publishers' and booksellers' association), the publisher Verlagsgruppe Random House GmbH as well as the bookseller Koch, Neff & Oetinger GmbH applied the Sammelrevers in a way that, according to the preliminary findings of the Commission, appreciably affected trade between Member States and, therefore, amounted to an infringement EU competition rules. The Commission had also received complaints from Austrian bookseller Libro AG and its affiliated Internet branch Lion.cc, who sold German best-sellers to German final consumers via the Internet at prices far below the fixed prices, as well as from Belgian Internet bookseller Proxis who planned similar rebate sales on the German market. The complaints were essentially based on the suspicion of a concerted embargo at the expense of foreign Internet booksellers that, according to the Commission's preliminary judgment, served to block cross-border Internet trade in cut-price books with German final consumers.
In parallel to the formal proceedings, the Commission, together with the Börsenverein, Verlagsgruppe Random House GmbH and Koch, Neff & Oetinger GmbH, reached agreement on the submission of an Undertaking which, in the Commission's view, definitively and fully meets the objections raised. The Undertaking guarantees the freedom of direct cross-border selling of German books to final consumers in Germany, in particular via the Internet, including ancillary services, such as cross-border advertising. At the same time, it establishes an exclusive list of conditions under which German booksellers and publishers can exceptionally stop cross-border selling to German final consumers if found to be a circumvention of the Sammelrevers agreement. In that case, the Undertaking makes it clear that for circumvention to take place it would require a German bookseller bound by the fixed price to take the initiative of circumventing the price fixing possibly by means of or with the help of a foreign bookseller. The listed categories of circumvention behaviour are to be interpreted restrictively. Moreover, the burden of proof for the relevant "objective circumstances" rests with the publishers and booksellers invoking circumvention
The Undertaking and its defined list of circumvention behaviour merely concerns the issue of inapplicability of Article 81 paragraph 1 of the EC Treaty. In the Commission's view, the 'Sammelrevers', as long as it is interpreted and applied in conformity with this Undertaking and the Commission Notice pursuant to Article 19 paragraph 3 of Regulation No. 17 of 10 June 2000, does not appreciably affect trade between Member States in the sense of Article 81 paragraph 1 of the EC Treaty. The Undertaking's content, however, has no bearing whatsoever on the assessment of issues related to the national book price fixing in the light of EC law as a whole, in particular, the free movement of goods and services as well as the freedom of establishment. Moreover, the Undertaking's validity in time is limited until the entry into force of a German law on fixed book prices or comparable State measures that replace the contractual price fixing system.
The detailed definition of the notion of circumvention in the Undertaking promotes legal certainty not only for the publishers participating in the 'Sammelrevers' and the booksellers bound by it, but also for foreign booksellers who aim at starting sales activity vis-à-vis final consumers on the German market for books. The Undertaking ensures that the Commission will intervene in case of concerted blocking of direct cross-border Internet book selling to German customers. For this reason, the complainant Libro agreed with both the Undertaking and the closure of the proceedings whilst Proxis had already withdrawn its complaint shortly before. Therefore , the Commission intends not only to terminate the pending competition proceedings, but also to grant a "negative clearance" confirming the compatibility of the 'Sammelrevers' with the competition rules of the EC Treaty. However, the Commission reserves the right to intervene again should the application of the 'Sammelrevers' lead to an adverse effect on trade between Member States.