SA Binon & Cie v. SA Agence et Messageries de la Presse

SA Binon & Cie (Binon) (plaintiff) sued SA Agence et Messageries de la Presse (AMP) (defendant), a newspaper and periodical distributor, in Belgian court after AMP refused Binon’s request for a supply of print media to sell in Belgium. AMP sold foreign and Belgian papers and operated within a selective-distribution system in which all retailers were approved by a committee. The Belgian court was under the impression that AMP set the prices retailers could charge for newspapers and periodicals, but AMP claimed that publishers set the prices. Regardless, both agreed that under the selective-distribution system, approved retailers were required to charge prices set by another actor in the vertical-distribution chain, reflecting a resale price maintenance agreement. The Belgian court certified a question to the European Union Court of Justice (EUCJ), asking whether the price-fixing agreement was compatible with the Treaty on the Functioning of the European Union (TFEU). In answering the question, the EUCJ accepted a submission by the Federal Republic of Germany, which concluded that the unique nature of print media, including the need for speedy and efficient distribution, and the financial burden associated with taking back unsold copies necessitated setting prices at the retail level. In addition, Germany pointed out that most European countries’ legislation permitted such price-fixing agreements in the newspaper and periodical industry.