AG Szpunar presents conclusions on the minimum delivery charge for books in France

On 3 July, Advocate General Maciej Szpunar presented his Opinion in the Amazon EU (Tarifs minimaux de livraison de livres) case(C-366/24), concerning the compatibility of the fixed minimum delivery charge for books applied in France with European Union law.

French Law No. 81-766 of 10 August ("Loi Lang") introduced a mechanism for setting the retail price of books, which, among other things, prohibited distributors from offering delivery of a new book if it was not picked up at a book retailer, without, however, setting a minimum price for the delivery service.

Law no. 2021-1901 of 30 December ("Loi Darcos"), amending the Loi Lang, now requires book retailers, when delivering books other than to another book retailer, to apply a minimum charge of 3 euros for the delivery service to the consumer. France invoked the protection or promotion of cultural and linguistic diversity as justification for adopting the Loi Darcos.

However, Amazon, a critic of the Loi Darcos, has argued that it discriminates against online sellers, who are forced to charge a higher price for books that, under the Loi Lang, should be sold at the same price. In his opinion, the Loi Darcos violates the European Union's rules on electronic commerce(Directive 2000/31) and on services(Directive 2006/123) as well as the principles of free movement of goods and freedom to provide services (respectively, Articles 34 and 56 of the Treaty on the Functioning of the European Union).

In his conclusions, Advocate General Szpunar began by recalling the Ker-Optika case law(C-108/09). Since the purpose and effect of the legislation in question is to regulate the doorstep delivery of books, it is legally and factually necessary to distinguish between two transactions, namely the sale of a book and its subsequent delivery. In this sense, the delivery of the book is not an ancillary and inseparable condition of the online sale. Furthermore, the charging requirements relating to delivery apply regardless of whether or not the book was bought on the Internet: whenever a home delivery is made, a charge is applied, but this is no longer the case for orders placed on the Internet and picked up in-store. The Advocate General therefore concluded that the French rule is not governed by Directive 2000/31(paragraphs 40 to 43).

As far as Directive 2006/123 is concerned, it aims to facilitate the freedom of establishment and the freedom to provide services throughout the EU by eliminating obstacles and guaranteeing high-quality services. Article 1(4) states that the Directive "shall not affect measures adopted at Community or national level in accordance with Community law to protect or promote cultural or linguistic diversity or media pluralism".

According to the Advocate General, the expression "does not affect" is unfortunate, to say the least, since legal provisions should not be descriptive, but prescriptive(paragraph 52). In his opinion, the EU legislator did not intend to exclude certain national rules from the scope of the Directive, but rather to allow them to be justified under the Directive, in particular under its Article 16(paragraph 61). In this sense, a Member State is obliged to justify a national regulation aimed at promoting linguistic diversity in the same way as it justifies an obstacle to any fundamental freedom, i.e. by proving that the regulation is proportionate, i.e. that it is likely to achieve the objective pursued and is necessary for that purpose(paragraphs 64 to 66).

It therefore concluded that Directive 2006/123 applies to the national minimum delivery tariff, which can be justified if it protects cultural diversity and fulfils the conditions of Article 16 of Directive 2006/123.

Finally, with regard to primary EU law, the Advocate General considered, in application of the consistent case law on the predominant fundamental freedom (the so-called centre of gravity test), that the free movement of goods, enshrined in Article 34 of the Treaty on the Functioning of the European Union(paragraph 75), is relevant in this case, since the legislation in question affects the price of goods (books) and not directly the service providers(paragraph 76). Although the national rule explicitly concerns the price paid by the buyer for the book delivery service, it does not in any way regulate the terms of the contracts concluded with the providers of that service, nor the price they must charge for that service, aimed at book sellers(paragraph 78).

The Advocate General also considered whether the legislation in question constitutes a "form of sale" within the meaning of the Keck et Mithouard case law(C-267/91 and C-268/91), concluding in the negative (paragraphs 80 to 84), because the measure in question regulates a separate logistical service, not the commercial act of selling books, which means that it is subject to scrutiny under the rules on free movement.