EU court adviser says France’s minimum book delivery fee could be legal

AMSTERDAM (CN) — A top legal adviser to the European Union’s highest court said France’s controversial minimum delivery fee for online book orders may be justified under EU law if it meets the necessary legal conditions to support independent bookstores and protect editorial diversity.

In a legal opinion, Advocate General Maciej Szpunar found that the 2023 rule, which requires retailers including online giant Amazon to charge at least 3 euros ($3.53) for home deliveries of book orders under 35 euros, falls within the scope of the EU Services Directive and could be justified under internal market rules if it meets conditions such as proportionality, necessity and nondiscrimination. The fee, introduced under a 2021 cultural law known as “Loi Darcos,” has been targeted over claims it violates internal market principles.

Szpunar took the view that cultural aims do not, by themselves, exempt the measure from EU internal market rules.

“A national regulation that sets a minimum fee for home delivery of book orders falls within the scope of this directive and can be justified if it meets the conditions,” Szpunar wrote. The provision requires that any such measure pursue a legitimate public interest, be limited to what is strictly necessary and apply equally to all service providers.

The case began in 2023 when Amazon challenged the French government’s order requiring the delivery fee. The U.S.-based online retailer argued that the policy breaks EU rules on e-commerce and unfairly limits the free flow of services and goods, especially since many of its book deliveries to France come from other EU countries.

But Szpunar dismissed Amazon’s argument that the rule falls under the scope of the E-Commerce Directive. He explained that while the directive governs online activities like advertising or placing an order, it does not apply to what happens after the sale, such as physically delivering the product to the customer. Since the French rule regulates this offline step, it falls outside the directive’s reach.

Beyond the Services Directive, Szpunar also considered whether the fee qualifies as a simple “selling arrangement,” which can sometimes escape EU market rules. But he rejected that idea, arguing that the measure regulates a distinct logistical service, not the commercial act of selling books.

He stressed that the measure doesn’t qualify as a simple selling rule under EU law, and still requires internal market review due to its impact on cross-border commerce.

Dr. Isidora Maletić, a senior academic at King’s College London, said the case highlights familiar yet challenging aspects of EU internal market law. “The case is significant as it raises important and familiar EU law questions that have often posed interpretational difficulties, including, for example, concerning the scope of the EU’s prominent Services Directive, as well as its relationship with other governing provisions,” she said.

At the same time, Szpunar acknowledged France’s longstanding efforts to defend editorial diversity through book pricing laws, citing the legacy of the 1981 “Loi Lang.” But he warned that invoking culture cannot be used to sidestep legal checks.

“If member states invoke cultural diversity as justification, they must prove that the measure is proportionate and appropriate,” he wrote. “Delivery fees have become a new front in price competition,” especially in an era where e-commerce threatens the balance once maintained by fixed book prices.

Professor Uta Kohl of Southampton Law School said the opinion could end up undermining the cultural exemptions that EU law was meant to protect.

“If rules meant to protect editorial diversity are always subject to strict legal tests, then the cultural exception doesn’t really offer any protection,” she said. “Even if the French rule falls outside this particular directive, it could still face scrutiny under the EU’s general principles on the free movement of goods and services.”

The advocate general’s opinion is not binding but often influential. The Court of Justice is expected to deliver its final ruling in the coming months.

“The Advocate General didn’t say whether the rule is proportionate, only that it could be lawful if it is,” said Damian Chalmers, Professor of EU Law and Regional Integration at the National University of Singapore and former head of the European Institute at the London School of Economics. “I think the court will likely endorse that approach and leave it to the French courts to make the final call, which they’re also likely to uphold.”

If the court follows Szpunar’s advice, France’s minimum fee for book deliveries may remain in place — but only if it survives EU scrutiny on fairness and market impact.