In 2017, I was astonished by a development, or rather, a non-development concerning book price fixing. The German legislator reintroduced fixed book prices for cross-border sales within the EEA in September 2016. The Commission (DG GROW) was informed about that plan. Why did no one get upset (except Christian Alexander, WRP 2016, Vol. 10, p. 1)? Because the new rule was hidden in a bill that dealt with price fixing for e-books? Because the press reported on it in a hardly noticeable way? Because the Commission changed its mind?
Until September 2016, the obligation for booksellers to apply the resale prices fixed by publishers and importers did not include cross-border sales within the EEA. The EU Commission had finally succeeded in enforcing this exception in Germany in 2000, after seven (!) years of struggle, during which Competition Commissioner Karel van Miert said that in no other case had his work been made so hard by hostility and purposeful misinformation during his term of office (cf. Markt, Macht und Wettbewerb, 2000, p. 144). When the Commission accepted the German fixed book price regime with the important exception, it stressed that “[t]hese conditions ensure that German publishers and booksellers cannot consider direct cross-border Internet selling of cheaper books by foreign retailers to be a circumvention of the ‚Sammelrevers‘ system” (IP/02/461). And now what? The revival of cross-border pricing in Germany is aimed in particular at the sale of books via the Internet. I am not sure whether this is the intended result of the ECJ’s judgement in Case C-531/07 – Fachverband der Buch- und Medienwirtschaft. Will the Commission pick up the gauntlet in 2018?
Prof. Dr. Petra Pohlmann holds a chair for civil law, business law and civil procedure at the University of Münster and is the editor of WuW (Wirtschaft und Wettbewerb).