Austrian OGH: Country of Origin Principle under E-Commerce Directive

May 23, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has referred a question on the E-Commerce Directive to the CJEU for a preliminary ruling.

In the case at hand, the plaintiff was operating bookshops in Austria and also has an associated online shop. The defendant is a German sole trader who sells German-language books, among other things, to customers in Austria via an online platform, delivering them across borders. The defendant advertises books at prices that comply with German law but which are below the minimum prices applicable in Austria.

The plaintiff sought to prohibit the defendant from advertising price-fixed goods for commercial transactions with Austrian end consumers at a price below the minimum price set for Austria. The defendant was in breach of Section 7(2) of the Buchpreisbindungsgesetz (Book Price Fixing Act). As the plaintiff and the defendant were direct competitors, the plaintiff was entitled to assert the violation of the law.

The court of first instance upheld the action. However, the court of appeal overturned the initial ruling and dismissed the action.

The OGH referred the following question to the CJEU for a preliminary ruling.

Is Article 1(6) of the EC Directive to be interpreted as meaning that a national provision prohibiting the final seller from announcing to final consumers that it will not sell German-language books at prices lower than a fixed minimum price of 5%, which is permissible for the purposes of competition in the domestic market, is a measure within the meaning of Article 1(6) of the Directive, meaning that a final seller from another Member State cannot claim Article 3(2) of the Directive (‘country of origin principle’) in the case of cross-border sales?

The outcome of the legal dispute hinges largely on the interpretation of Article 1(6) of the EC Directive. According to the OGH, there is no ‘acte clair’ regarding the issue that has been referred for a preliminary ruling. Clarification by the CJEU is therefore required.

(OGH, 4 Ob 40/25y, 11 April 2025)