Book price fixing applies to online retailers too – Amazon

Amazon offered books to the German market below the prices set by publishers pursuant to the Buchpreisbindungsgesetz and thereby provoked a cease-and-desist letter and discontinuation demand from a competitor. The Regional Court (LG) Hamburg now had to decide on the lawfulness of these cease-and-desist letters in the context of main proceedings.

The US American company Amazon offered books on its German internet sales platform www.amazon.de on several occasions below thepublisher-fixed retail price. A bookseller from Brunsbüttel, Schleswig-Holstein, who operates a general bookshop, resisted this. He first issued Amazon a cease-and-desist letter and demanded discontinuation, information and damages for the costs incurred by him through the cease-and-desist letter.

Amazon initially defended itself with the argument of abuse in issuing the cease-and-desist letter. The online retailer was of the opinion that the bookseller from Brunsbüttel was not concerned with compliance with book price fixing, but merely with the obstruction of an unwelcome competitor, which was also demonstrated by the cease-and-desist letters issued by other booksellers. Amazon also bore no fault, since the prices were set by third parties and the online retailer, given the number of titles offered, was unable to check the individual prices. Furthermore, book price fixing was incompatible with European Union law, with reference to an EuGH judgment of 30.04.2009 (Az. C 531/07).

Court's decision

In its judgment of 19.01.2010, Az. 312 O 258/09 the Regional Court (LG) Hamburg ruled entirely in favour of the bookseller from Brunsbüttel.

The court first rejected the allegation of abuse of rights. The fact that several legitimate cease-and-desist letters from different booksellers were issued did not speak in favour of an intention to obstruct on the part of the bookseller from Schleswig-Holstein.

Furthermore, the court decided that the online retailer could not rely on an absence of fault. Amazon did not merely provide a sales platform but had itself distributed the books, i.e. acted as a seller, so that the inspection duties developed by case law for so-called ancillary liability (Störerhaftung) did not apply.

A violation of European Union law was also rejected by the Regional Court, since this was only a matter of sales within Germany and therefore cross-border movement of goods was not affected.

Conclusion

Even minor deviations from the retail book prices set by publishers can, according to the view of the Regional Court (LG) Hamburg, have a lasting effect on consumer behaviour and are therefore to be assessed as anti-competitive market conduct. Retailers in both stationary retail and online retail must – with few exceptions – therefore strictly adhere to book price fixing.