The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has ruled that vouchers may only be charged for the purchase of price-linked books if the bookseller has already received a corresponding consideration when the vouchers were issued.
The plaintiff is the Börsenverein des Deutschen Buchhandels e.V. The defendant sells price-bound books via its website www.amazon.de in Germany. Customers can sell used books to the defendant via its "trade-in programme". In a promotion carried out around the turn of 2011/2012, customers who submitted at least two books for purchase at the same time received a voucher for €5 credited to their customer account in addition to the purchase price. This voucher could be used to purchase any product from the defendant. This also included the purchase of new books.
The plaintiff considers the crediting of the vouchers for the purchase of price-fixed books to be an infringement of fixed book prices. The Regional Court dismissed the action for injunctive relief directed against this. The Higher Regional Court upheld the action because the defendant had infringed §§ 3, 5 BuchPrG.
The defendant's appeal was unsuccessful. The defendant violated § 3 of the German BookPrint Act (BuchPrG) with the impugned advertising campaign because it issued vouchers that could be used to purchase price-bound books to end consumers without receiving a corresponding consideration from the customers.
The purpose of fixed book prices is to ensure an extensive range of books available to the general public at a large number of sales outlets by setting binding prices for sales to ultimate consumers (§ 1 BuchPrG). Gift vouchers which bookshops sell and with which the recipient can purchase books are permissible under price fixing law. In this case, the bookseller receives the fixed sales price for the book through the sale of the voucher and any additional payment by the presentee. On the other hand, a violation of fixed book prices occurs if a trader, when buying or selling goods for the customer, issues free vouchers that can be used to purchase price-fixed books. The bookseller then receives a lower payment for the book than the fixed price. It is irrelevant that the issuing of the voucher and the sale of the book are two independent legal transactions and that a link between them is only established by the customer's decision to buy.
Accordingly, the point of reference for the examination of a violation of the fixed price is whether the bookseller's assets are increased by the amount of the fixed price when selling new books. This is not the case in the dispute. It is true that the defendant is released from the obligation it assumed vis-à-vis the customer with the voucher when purchasing a book by purchasing a price-fixed book and crediting the voucher. However, it does not receive the fixed price for the sale of the price-bound book if - as in the present case - it has not received any corresponding consideration for the voucher.
Judgment of the Federal Court of Justice of 23 July 2015 - I ZR 83/14 - Voucher promotion for book purchases
Lower courts:
Wiesbaden Regional Court - Judgment of 16 August 2013 - 13 O 18/13
OLG Frankfurt - Judgment of 28 January 2014 - 11 U 93/13
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
