Who or what is a book price maintenance trustee?
The Book Price Fixing Act (BuchPrG) obliges publishers and importers of books to set the final prices of the books they publish or import. Anyone who sells books commercially or professionally to end consumers in Germany is therefore obliged to charge the price set by the publishers. New books may therefore generally only be sold at the fixed price. This price fixing is intended to protect the cultural asset 'book' and prevent a price war among bookstores.
Can I receive a warning for an incorrect book price?
Violations of the BuchPrG are anti-competitive and can be subject to a warning notice from competitors and so-called book price maintenance trustees in accordance with § 9 para. 2 no. 3 BuchPrG in conjunction with § 12 para. 1 sentence 2 UWG.
According to their own statements, the lawyers acting as book price maintenance trustees are commissioned by numerous German publishers to monitor, as legal representatives, compliance with price fixing by those retailers who commercially sell price-bound products to end consumers under the Book Price Fixing Act.
In most cases where book price maintenance trustees issue warning notices, it involves the offering of used books online that were either not marked as such or are not actually used.
What are the costs of a warning notice?
In the event of a justified warning notice, the question then arises as to the amount of costs for a warning notice that must be reimbursed to the book price maintenance trustee.
Within the scope of their warning notices, the book price maintenance trustees demand, based on the Lawyers' Remuneration Act (RVG) and assuming a dispute value of €10,000.00, a 0.75 business fee in accordance with §§ 13, 14 RVG plus a flat-rate expense allowance and statutory value-added tax, totaling an amount of €521.82.
Can book price maintenance trustees only demand a flat-rate warning fee?
The Higher Regional Court of Frankfurt am Main (OLG Frankfurt a.M., judgment of April 24, 2007, 11 U 41/06) has taken the view that the provisions of the Lawyers' Remuneration Act are not applicable to book price maintenance trustees. According to the OLG Frankfurt am Main, book price maintenance trustees are only entitled to a flat-rate warning fee as reimbursement of expenses, which is based on the actual expenses incurred by the book price maintenance trustee when issuing warning notices for price fixing violations. The OLG Frankfurt am Main considered an amount of €203.00 to be justified in this context.
Are the costs of the warning notice calculated according to the Lawyers' Remuneration Act (RVG)?
Other courts, however, allow book price maintenance trustees a claim for reimbursement based on the Lawyers' Remuneration Act. The Regional Court of Oldenburg awards book price maintenance trustees, based on the Lawyers' Remuneration Act (RVG) and assuming a dispute value of €10,000.00, a 0.75 business fee in accordance with §§ 13, 14 RVG plus a flat-rate expense allowance and statutory value-added tax, thus an amount of €521.82.
Regional Court Wuppertal: Costs of the warning notice amount to €147.56
The Regional Court of Wuppertal also had to decide on the amount of costs for a warning notice that must be reimbursed to a book price maintenance trustee. In the case to be decided, a commercial seller, who only occasionally sells books, had incorrectly priced a new book on eBay.
In this case, the Regional Court of Wuppertal ruled that, in principle, the fee schedule of the RVG can be used for calculating a claim for reimbursement of expenses by the book price maintenance trustee. However, for only one book sold, the value of the matter is merely €1,000.00.
Based on a value of the matter amounting to €1,000.00, a 1.3 business fee, plus a flat-rate expense allowance and statutory value-added tax, a book price maintenance trustee is thus entitled to a claim for reimbursement of €147.56 for a warning notice.
On this matter, the Regional Court of Wuppertal states:
„The amount of the dispute value must, in principle, be guided by the economic interest of the plaintiff. However, it cannot be disregarded that the office of the book price maintenance trustee, which serves the general interest of the book trade, is incompatible with fee demands that could create the impression that the trustee is primarily pursuing their own economic interests. Concerns about an excessive cost burden on smaller retailers due to warning notices must therefore be addressed by ensuring that while the trustee bills according to RVG rates, the determination of the dispute value is more differentiated. While the general underpricing of a bestseller by a market-dominant retailer particularly endangers price fixing, a single violation by a general bookseller concerning a rarely demanded specialist book is of lesser significance. In this respect, a dispute value of only €1,000.00 is also considered appropriate in commentary literature for the incorrect pricing of a single book (Wallenfels/Russ, op. cit., paras. 55, 57).
The plaintiffs merely issued a warning notice for a single price fixing violation by the defendant concerning one specific book. No further violations by the defendant were alleged. The specific book itself is also not a generally sought-after bestseller. While it may have been offered to a multitude of unspecified persons via eBay, it cannot be overlooked that the defendant, with their practiced business model, does not correspond to the image of a market-dominant bookseller. Given these circumstances, the Chamber considers a value of the matter of €1,000.00 to be appropriate. Even assuming a 1.3 business fee – which was not even claimed by the plaintiffs – a claim for reimbursement would only amount to €147.56 (€104.00 business fee, €20.00 flat-rate expense allowance, €23.56 VAT). In addition, there are the expenses for the test purchase...“.
Source: Regional Court Wuppertal, Judgment of august 9, 2019, Ref. 11 O 24/19
GoldbergUllrich Attorneys at Law 2019
Attorney-at-law Michel Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
