The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has ruled that when purchasing price-fixed books, vouchers may only be redeemed if the bookseller has already received a corresponding consideration at the time the vouchers were issued.
The plaintiff is the German Publishers and Booksellers Association (Börsenverein des Deutschen Buchhandels e.V.). The defendant sells price-fixed books in Germany via its website www.amazon.de. Through the defendant's 'Trade-in Program,' customers can sell their used books. In a promotional campaign conducted around the turn of the year 2011/2012, customers who submitted at least two books for purchase simultaneously received a €5 voucher credited to their customer account, in addition to the purchase price. This voucher could be used to purchase any products from the defendant, including new books.
The plaintiff views the offsetting of vouchers against the purchase of price-fixed books as a violation of the book price-fixing regulations. The Regional Court dismissed the injunction suit filed against this practice. The Higher Regional Court, however, granted the injunction, finding that the defendant had violated §§ 3, 5 BuchPrG.
The defendant's appeal was unsuccessful. The defendant violated § 3 BuchPrG with the contested promotional campaign by issuing vouchers, which could be used for the purchase of price-fixed books, to end consumers without having received a corresponding consideration from these customers.
The purpose of the fixed book price system is to ensure a comprehensive range of books, accessible to the general public in a large number of sales outlets, by setting binding prices for sales to end consumers (§ 1 Book Price Fixing Act). Gift vouchers sold by bookstores, which recipients can use to purchase books, are permissible under price-fixing law. In this scenario, the bookseller receives the full fixed retail price for the book through the voucher sale and any additional payment from the recipient. Conversely, a violation of the fixed book price system occurs when a retailer issues free vouchers to customers during the purchase or sale of goods, which can then be used to acquire price-fixed books. In such a case, the bookseller ultimately receives less remuneration for the book than its fixed price. It is irrelevant that the issuance of vouchers and the sale of books constitute two independent legal transactions, and a connection between them is only established by the customer's purchasing decision.
The reference point for assessing a violation of price fixing is whether the bookseller's assets are increased by the fixed price when selling new books. This is not the case in the present dispute. Although the defendant is released from the obligation assumed towards the customer with the voucher upon the purchase of a book, by acquiring a price-fixed book with the voucher credited, the defendant does not receive the full fixed price for the sale of the price-fixed book if, as in the present case, no corresponding consideration was received for the voucher.
Judgment of the Federal Court of Justice of July 23, 2015 – I ZR 83/14 – Voucher Campaign for Book Purchases
Lower Courts:
Regional Court Wiesbaden – Judgment of august 16, 2013 – 13 O 18/13
Higher Regional Court Frankfurt – Judgment of January 28, 2014 – 11 U 93/13
Source: Press Release of the Federal Court of Justice
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
