Price Indication Directive, Article 3 Price Indication Directive, Article 3, 1. Price Indication Directive, Article 4 Price Indication Directive, Article 4, 1.

ECLI:DE:OLGDRES:2018:0626.14U341.18.0A

A free sale of a price-fixed book does not always constitute a violation of book-price fixing.

A lawyer acting as a fixed price trustee claimed against a book and magazine publishing company for violation of fixed book prices.

In the advertising brochure and online shop of the defendant, products marked with a smiley could be selected as a gift using an "advantage code". The price for the price-bound new book was shown in the order process after deduction of 14.95 EUR with 0.00 EUR plus shipping costs of 3.75 EUR.

In its judgment of 16 February 2018, the First Instance Court (Landgericht) rejected the petition for desist of this offer. The defendant had sold the book free of charge, and only invoiced the shipping costs, which according to the BuchPrG (Fixed book price law) are not part of the final price and were acceptable as the flat rate is usual and reasonable.

The plaintiff objected to this with his appeal at the Court of Appeal (Oberlandesgericht).

The Court of Appeal examines whether the free sale of a price-bound book, only invoicing for the shipping costs, could be a circumvention of the fixed price ruling.

Further, it checks whether the shipping costs might be a hidden selling price.

In the case that a book is sold for free and only shipping costs are invoiced, those shipping costs do not form part of the final price, as provided both by the BuchPrG (Fixed book price law) and the PAngV (Price quotation regulation), and thus do not bypass the fixed book price ruling by being used as a hidden selling price.

On the other hand, a flat-rate calculation of the shipping costs is reasonable and usual, even if in certain cases, as it is the case, they are higher than the real shipping costs.

The pretended incentive and buyer loyalty effect criticised by the plaintiff, which results only from such a prior free sale, are not covered by the prohibition on price competition in the sale of books to final consumers. The purpose of fixed book prices is neither, moreover, to restrict dealers in their entrepreneurial freedom with regard to the use and development of marketing instruments nor to exclude competition as a whole.

As a result, in this case, the free sale of a price-bound book does not violate the fixed book price ruling.

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The plaintiff’s appeal was dismissed.