Opinion of the Advocate-General
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My Lords,
Mrs Fourage ( née Rousseau ), the managing director of SA Paris Distribution Centre Leclerc de la Bottière, Nantes, was prosecuted for selling 1 144 books at a price less than that resulting from the application of Law No 81-766 of 10 August 1981 ( as amended by Law No 85-500 of 13 May 1985 ) and Decree No . 85-556 of 29 May 1985 . As the Court is now well aware those laws prohibit, subject to certain exceptions, books published or imported into France within two years from being sold at less than 95% of the price fixed by the publisher or importer except where they are imported from another Community country, after publication in such a country or after publication in and export from France to such a country .
She was acquitted by the tribunal de police, Nantes, on the grounds that the minimum price did not apply to books published in France and re-imported from another Member State and that it was not possible to identify which of the books in question published in France had been re-imported from another Member State .
168/86, Op .
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On appeal by the procureur général, the Court of Appeal of Rennes has referred the following question to the Court :
"Must Articles 3 ( f ) and 7 of the Treaty of 25 March 1957 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 ."
The point at issue is the same as that raised in Case 355/85 Driancourt v Cognet in which, in its judgment of 23 October 1986, the Court held :
"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 ."
168/86, Op .
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In my opinion, Article 3 ( f ) is not directly applicable in a national court . No discrimination on the grounds of nationality contrary to Article 7 of the Treaty has been shown . Article 30 does not prohibit the price differentials which may exist between books which have been, and those which have not been, re-imported into France from another Member State . Accordingly, the answer falls to be given in the same terms as that given in the case of Cognet .
It is to be noted that the Court' s judgment in Cognet was supplied to the referring court which, however, maintained its request for a preliminary ruling . Since ( as I said in my Opinion of 12 December 1985, in Joined Cases 271 to 274/84 and 6 and 7/85 Procureur de la République v Chiron ) under Community law and procedure in such a situation it is open to the national court to withdraw a reference, it is to be hoped, in those Member States where it cannot apparently be done at present, that a way may be found for national law and procedure to make a withdrawal possible when no new issue arises, when no new arguments are advanced and where the Court' s answer can only be the same .
The costs of Mrs Fourage ( née Rousseau ) fall to be dealt with by the national court; the Commission' s costs are not recoverable .
168/86, Op .
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