In Germany, books and other written works are subject to fixed book prices, which, in order to protect the cultural asset “books”, only allow them to be sold at the officially set price. The Frankfurt Higher Regional Court has now clarified which price lists must be used to determine the fixed price. Read more about the decision below.
I. The facts
The defendant, a music store, sold music textbooks and music books via Amazon, among other things. The defendant violated the BookPrG by selling sheet music at a price higher than the fixed retail price.
She then issued a cease-and-desist declaration to the plaintiff in 2015 with a promise of contractual penalties.
In 2021, the plaintiff purchased a book with audio CD from the defendant for €12.95. At this time, the book was also listed on the publisher’s homepage with a price of €12.95. However, the directory of available books (VLB) stated a price of €9.95 for the book in question.
The plaintiff then took legal action against the defendant based on the cease-and-desist declaration and was proven right before the Wiesbaden Regional Court (Az: 11 O 73/21).
The defendant appealed against the judgment and argued that only the determination of the publisher’s price was decisive.
The plaintiff, on the other hand, defended the contested judgment on the grounds that a commercial custom within the meaning of Section 346 of the German Commercial Code (HGB) had developed, according to which the VLB was the price reference database and almost all relevant publishers recognized the prices shown there as binding.
II. The decision
In its judgment of November 24, 2023 (Az: 11 U 150/22), the Frankfurt am Main Higher Regional Court rejected the appeal and upheld the first instance judgment. The defendant violated the obligation incumbent on him under Section 3 of the BuchPrG.
1.) General information on § 3 BuchPrG
§ 3 BuchPrG stipulates that when books are sold commercially or on a business basis to final buyers, the price set in accordance with § 5 Para. 1 BuchPrG must be adhered to.
Section 21 Publishing Act grants the publisher the right to determine the retail price at which the work is distributed in the respective edition.
At the same time, according to Section 5 Para. 1 BuchPrG, publishers are obliged to bind and publish the final prices of their products.
The fixed price covers the respective edition of the title, and not the book title in general. As a result, subsequent editions that differ in terms of content or appearance require a new price increase.
Section 5 Paragraph 1 BuchPrG not only requires the final price to be determined, but also its publication.
This price is relevant for all booksellers who are obliged to comply with fixed book prices.
For this reason, the publication must be done “in an appropriate manner”, as this is the only way for dealers to find out about the relevant price and to take this into account when selling to the final buyer.
Tipp:
The IT law firm provides a comprehensive guide to the obligations under the Book Price Fixing Act and the resulting requirements for retailers available here.
2.) Classification in the specific case
According to the Frankfurt am Main Higher Regional Court, a fixed and fixed retail price of €9.95 can be assumed for the book with audio CD at issue in the case in view of the information in the VLB at the time of purchase.
In any case, the different indication of €12.95 on the publisher’s homepage does not constitute an effective determination of the fixed retail price for the defendant in view of a different commercial usage with regard to the publication and the associated complete information of those subject to the obligations of Section 3 BookPrG.
Consequently, the defendant sold the book at a higher price than the set price, a so-called overprice sale.
With regard to the plaintiff’s submission, it can at least be assumed that there is a commercial custom within the meaning of Section 346 of the German Commercial Code (HGB) to the effect that the set prices are published in the VLB as is typical for the industry and are therefore considered set prices in accordance with Section 3 of the BookPrG.
This is at least the case if the publisher concerned – as here – uses the VLB itself to publish the set price.
This equation between determination and publicity in the VLB is a direct consequence of the traffic regulations for the book trade in the versions dated November 9, 2006 and November 2013. Because according to Section 3 No. 3 of these traffic regulations, the published price is considered the fixed price for the book trade.
The publication of the declaration, which is usually made to the directory, replaces the publisher’s declaration of intent.
It is true that the traffic regulations have no direct effect on the defendant, because bookstores, as publishers’ customers, represent third parties against whom the stock exchange association is not allowed to make binding regulations. However, Section 3 No. 3 of the Traffic Regulations emphasizes the existence of the commercial custom put forward by the plaintiff within the meaning of Section 346 of the German Commercial Code (HGB).
The defendant must in turn counter this. Booksellers must be able to obtain complete and reliable information about the prices applicable to end buyers. Only if the fixed retail prices are accessible to them in a reasonable and clear manner can they fulfill their obligation under Section 3 of the BookPrG. This is served by publication in an industry-typical database.
The BuchPrG is intended to avoid price competition between bookstores, which could arise if publishers – as in this case – were allowed to publish equally binding information about the set retail price on different channels. As a result, publishers cannot fulfill their obligation to provide information simply by publishing the set prices on their own homepage.
The contradiction caused by the publisher between the information on the homepage (€12.95) and the VLB (€9.95) is clearly resolved in favor of the price shown in the VLB. Furthermore, it remains the case that it is the responsibility of the defendant (as the seller of books to the final buyer) to find out about the relevant fixed prices.
III. Conclusion
In the book trade, a commercial custom within the meaning of Section 346 of the German Commercial Code (HGB) has developed to the effect that the prices set by publishers are published in the “Directory of Deliverable Books” (VLB), as is typical for the industry, and are therefore considered fixed prices within the meaning of Section 3 of the BookPrG.
A bookseller is bound to this commercial custom if the publisher in question itself uses the list of available books.
In this case, the dealer may not charge a different price than that published in the VLB.
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