Provisional text

delivered on 3 July 2025 (1)

Case C‑366/24

Amazon EU Sàrl

Ministre de la Culture,

Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

( Reference for a preliminary ruling – Internal market – Freedom to provide services – Free movement of goods – Preservation or promotion of cultural diversity – Home delivery service of books – National legislation providing for a minimum charge for such delivery – Directive 2006/123/EC )

I.Introduction

1.The French literary landscape has long been characterised by protective measures aimed at safeguarding cultural heritage, and price regulation has been a fundamental pillar to that end since the ‘Lang’ law, (2) adopted in 1981. That law introduced a single price for books in order to guarantee fair access to literature throughout the country, thereby promoting a decentralised network of bookshops and editorial diversity in the face of market standardisation. Almost 40 years later, the ‘Darcos’ law of 2021 has extended that protective mechanism to the digital age by imposing a minimum charge of EUR 3 for the delivery of online book orders under EUR 35.

2.The Conseil d’État (Council of State, France) seeks to determine whether it is possible to reconcile, on the one hand, EU law based on the postulate of an internal market with free movement of goods and factors of production and, on the other, a national cultural policy which, by setting prices, seeks to protect independent bookshops, to maintain editorial pluralism and to assert the status of books as ‘non-market goods’ belonging to the national heritage.

3.The specific feature of the present case lies in the fact that the referring court is asking the Court of Justice only about the provisions of EU law in the light of which it must examine the legislation in question, without asking, as regards the substance, whether the legislation in question is compatible with EU law.

4.The present case potentially involves Directive 2000/31/EC (3) and Directive 2006/123/EC (4) and the fundamental freedoms of the FEU Treaty, more specifically the free movement of goods under Article 34 TFEU and the freedom to provide services under Article 56 TFEU.

II.Legal framework

A.European Union law

1.Directive 2000/31

5.Recitals 18 and 21 of Directive 2000/31 state:

‘(18) Information society services span a wide range of economic activities which take place on-line; these activities can, in particular, consist of selling goods on-line; activities such as the delivery of goods as such or the provision of services off-line are not covered; …

…

(21) The scope of the coordinated field is without prejudice to future … harmonisation [at EU level] relating to information society services and to future legislation adopted at national level in accordance with [EU] law; the coordinated field covers only requirements relating to on-line activities such as on-line information, on-line advertising, on-line shopping, on-line contracting and does not concern Member States’ legal requirements relating to goods such as safety standards, labelling obligations, or liability for goods, or Member States’ requirements relating to the delivery or the transport of goods, including the distribution of medicinal products; …’

6.Article 1 of that directive, entitled ‘Objective and scope’, provides, in paragraph 6 thereof, that ‘[that] Directive does not affect measures taken at [EU] or national level, in the respect of [EU] law, in order to promote cultural and linguistic diversity and to ensure the defence of pluralism.’

7.Article 2(h) of that directive provides:

‘For the purpose of this Directive, the following terms shall bear the following meanings:

…

(h) “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.

…

(ii) The coordinated field does not cover requirements such as:

–requirements applicable to goods as such,

–requirements applicable to the delivery of goods,

–requirements applicable to services not provided by electronic means.’

8.Under Article 3 of that directive, entitled ‘Internal market’:

‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

…

4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:

(a) the measures shall be:

(i) necessary for one of the following reasons:

–public policy …,

–the protection of public health,

–public security, including the safeguarding of national security and defence,

–the protection of consumers, including investors;

…

(b) before taking the measures in question … the Member State has:

–asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,

–notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures.

…’

2.Directive 2006/123

9.Recitals 11, 33, 40, 76 and 83 of Directive 2006/123 state:

‘(11) This Directive does not interfere with measures taken by Member States, in accordance with [EU] law, in relation to the protection or promotion of cultural and linguistic diversity and media pluralism, including the funding thereof. This Directive does not prevent Member States from applying their fundamental rules and principles relating to the freedom of press and freedom of expression. …

…

(33) The services covered by this Directive concern a wide variety of ever-changing activities … The services covered are also services provided both to businesses and to consumers, such as … distributive trades … Those activities may involve … services which may be provided at a distance, including via the Internet.

…

(40) The concept of “overriding reasons relating to the public interest” to which reference is made in certain provisions of this Directive … covers at least the following grounds: public policy, public security and public health, … cultural policy objectives, including safeguarding the freedom of expression of various elements, in particular social, cultural, religious and philosophical values of society; the need to ensure a high level of education, the maintenance of press diversity and the promotion of the national language; the preservation of national historical and artistic heritage …

…

(76) This Directive does not concern the application of Articles [34 to 36 TFEU] relating to the free movement of goods. The restrictions prohibited pursuant to the provision on the freedom to provide services cover the requirements applicable to access to service activities or to the exercise thereof and not those applicable to goods as such.

…

(83) It is necessary to ensure that the provision on the freedom to provide services may be departed from only in the areas covered by derogations. …’

10.Article 1 of that directive, entitled ‘Subject matter’, provides, in paragraphs 1 to 6 thereof:

‘1. This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.

This Directive does not affect the freedom of Member States to define, in conformity with [EU] law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with State aid rules, and which specific obligations they should be subject to.

4. This Directive does not affect measures taken at [EU] level or at national level, in conformity with [EU] law, to protect or promote cultural or linguistic diversity or media pluralism.

6. This Directive does not affect labour law … which Member States apply in accordance with national law which respects [EU] law. Equally, this Directive does not affect the social security legislation of the Member States.’

11.Article 2 of that directive, entitled ‘Scope’, provides:

‘1. This Directive shall apply to services supplied by providers established in a Member State.

…

(d) services in the field of transport … falling within the scope of [Title VI of Part Three of the FEU Treaty];

…’

12.Article 3(1) of that directive provides, inter alia, that if the provisions of the directive conflict with a provision of another EU act governing specific aspects of access to or exercise of a service activity in specific sectors, the provision of the other EU act is to prevail and is to apply to those sectors.

13.Article 4(1) of Directive 2006/123 defines the term ‘service’ as ‘any self-employed economic activity, normally provided for remuneration, as referred to in Article [57 TFEU]’.

14.Article 15 of that directive is in Chapter III, entitled ‘Freedom of establishment for providers’, and provides, in paragraphs 2 and 3 thereof:

‘2. Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:

…

(g) fixed minimum and/or maximum tariffs with which the provider must comply;

…

…

(b) necessity: requirements must be justified by an overriding reason relating to the public interest;

…’

15.Article 16 of that directive, which is in Chapter IV thereof, entitled ‘Free movement of services’, provides:

‘1. Member States shall respect the right of providers to provide services in a Member State other than that in which they are established.

The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory.

Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles:

(a) non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established;

(b) necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment;

(c) proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective.

…

B.French law

1.The 1981 Law

16.Article 1 of the 1981 Law provides, in its first and fourth paragraphs:

‘Any natural or legal person who publishes or imports books is required to set the price for sale to the public of the books he or she or it publishes or imports.

…

The actual selling price charged by retailers to the public shall be between 95% and 100% of the price set by the publisher or importer. Where a book is sent to the purchaser and is not collected from a book retailer, the selling price shall be the price set by the publisher or importer. Under no circumstances may the book delivery service, either directly or indirectly, be offered by the retailer free of charge, unless the book is collected from a book retailer. The delivery service must be invoiced in compliance with a minimum amount set by order of the ministers responsible for culture and for the economy, based on a proposal from the Autorité de régulation des communications électroniques, des postes et de la distribution de la presse [(Regulatory Authority for Electronic Communications, Postal Affairs and Press Distribution)]. That order shall take into account the charges offered by postal service providers in the book retail market and the need to maintain a dense network of retailers across the country.’

2.The order of 4 April 2023

17.Under Article 1 of the arrêté du 4 avril 2023 relatif au montant minimal de tarification du service de livraison du livre (order of 4 April 2023 on the minimum amount to be charged for book delivery services): (5)

‘The minimum amount for the book delivery service referred to in the fourth paragraph of Article 1 of [the 1981 Law] shall be set at:

–[EUR] 3 inclusive of all taxes for any order comprising one or more books for which the new purchase value is less than [EUR] 35 inclusive of all taxes;

–more than [EUR] 0 inclusive of all taxes for any order comprising one or more new books for which the new purchase value is greater than or equal to [EUR] 35 inclusive of all taxes.

The minimum charge set in this manner shall apply to the delivery of an order irrespective of the number of packages making up that order.

The delivery service shall be paid for by the purchaser at the same time as payment for the order.’

III.The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

18.Amazon EU Sàrl (‘Amazon’), a company incorporated under Luxembourg law, has brought an action before the Conseil d’État (Council of State), the referring court, for the annulment of the order of 4 April 2023.

In support of its action, Amazon submits that the imposition on retailers of a minimum charge for the delivery service for books that are not collected from a book retailer corresponding to a minimum amount as set by the order of 4 April 2023 infringes, primarily, Directive 2000/31 and, in the alternative, Directive 2006/123, as well as fails to observe the principle of the free movement of goods, while asserting that a large proportion of the books it sells in France are delivered from warehouses located in another Member State.

21.In the first place, the referring court considers that the fourth paragraph of Article 1 of the 1981 Law governs exclusively book delivery services. Therefore, in the light of Article 2(h)(ii) of Directive 2000/31, as interpreted by the Court of Justice in the judgment in Ker-Optika, (6) the requirement introduced by that provision does not come within the scope of that directive.

22.In the second place, that court states that, according to Amazon, the fourth paragraph of Article 1 of the 1981 Law makes the freedom to provide a service subject to a requirement that is incompatible with the conditions laid down in Article 16(1) of Directive 2006/123. The Ministry of Culture (France) states for its part, principally, that the fourth paragraph of Article 1 of that law was adopted in order to preserve editorial diversity and, consequently, cultural diversity, and therefore it is excluded from the scope of that directive pursuant to Article 1(4) thereof. In the alternative, that Ministry submits that cultural diversity is a ground that can justify the legislation in question.

23.In the third place, the referring court asks, in the event that the Ministry of Culture’s interpretation is accepted, whether the examination of legislation in the light of Directive 2006/123 excludes its examination in the light of primary law.

24.In the fourth place, the referring court asks, in the event that such an examination should be carried out in the light of primary law, whether a national measure that sets a minimum charge for the home delivery of a product must be regarded as relating to a selling arrangement for that product and, consequently, must be assessed in the light of the free movement of goods guaranteed by Article 34 TFEU or in the light of the freedom to provide services guaranteed by Article 56 TFEU, taking into account, in particular, the harm caused to the activity of selling that product online or to the distinct nature of the delivery service as compared with the sale of the product.

In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 1(4) of [Directive 2006/123] be interpreted as excluding from the scope of that directive a national measure governing the exercise, in the territory of the Member State, of a service activity with a view to protecting or promoting cultural diversity or must it be interpreted, in conjunction with Article 16(1)(b) of that directive, as meaning that the preservation or promotion of cultural diversity is capable of justifying an exemption from the prohibition on subjecting service providers established in another Member State to a requirement introduced by such national legislation?

(2) Does the assessment of the compatibility of such national legislation with the objectives pursued by Directive [2006/123] exclude the same examination in the light of the primary law of the European Union?

(3) If it is necessary to assess the compatibility of a national measure adopted with a view to protecting or promoting cultural diversity with the freedoms guaranteed by Articles 34 and 56 [TFEU], must a national measure that sets a minimum charge for the home delivery of a product be regarded as relating to a selling arrangement for that product and, consequently, must it be assessed solely in the light of the free movement of goods, or should that legislation be assessed solely in the light of the freedom to provide services, in particular, having regard to the harm caused to the activity of selling that product online or to the distinct nature of the delivery service as compared with the sale of the product?’

IV.Analysis

25.It must be noted at the outset that the purpose of all the questions referred for a preliminary ruling is to determine the EU law applicable in the present case. From that point of view, the referring court asks the Court of Justice, by its first question, whether the provisions of Directive 2006/123 are applicable; by its second question, in the event that Directive 2006/123 is applicable, whether an examination may be carried out in the light of primary law, and, by the third question, whether the legislation in question constitutes an obstacle under Article 34 or 56 TFEU. However, the referring court does not raise the question of a possible justification for any obstacle that might exist.

A.Preliminary observations

1.The legislation at issue in the main proceedings

26.In so far as the national court refers to the protection and promotion of cultural diversity, it is necessary to examine the stated objective of the measure at issue and the mechanism it puts in place to achieve it. The legislation at issue in the main proceedings requires retailers to invoice purchasers, in compliance with the minimum charges, for the delivery of books which are not collected from a book retailer, but are delivered to the purchaser’s home.

27.The stated objective of that legislation is to protect book retailers established in France. In that regard, the French Government asserts that, in France, the book market is the subject of a cultural policy which ‘seeks to protect books as cultural assets against the negative effects which may result from price competition’. It is from that perspective that the 1981 Law provided for a general price-setting mechanism under which publishers and importers of books are obliged to set a retail price, which retailers are required to observe, subject to a maximum discount of 5%.

28.Although that general price-setting mechanism does not come within the scope of this Opinion, it may be stated that, according to its proponents, that cultural policy makes it possible to ensure the vitality and plurality of the publishing sector and to maintain a dense and diversified network for the distribution of books throughout the national territory.

29.Moreover, I note that the Court has previously been asked about the retail price of books in France and in Austria, and has concluded that such systems are not incompatible with the provisions of the internal market and, in particular, with the free movement of goods. (7)

30.The rise in internet sales has profoundly affected not only consumer habits but also, according to the French Government, the balance brought about by the 1981 Law. It has also introduced a new competitive factor: delivery costs. Some large online platforms have offered free delivery of books, which, according to the French Government, has been at the expense of other retailers. In order to remedy that imbalance between market participants, that law was amended, requiring that shipping costs be invoiced at a minimum amount and providing for a minimum price of EUR 3 and for the possibility of virtually free carriage for purchases of over EUR 35.

31.The legislation in question therefore expressly covers the sale of books over the internet, which leads me to the analysis of Directive 2000/31.

2.Directive 2000/31

32.It must first be examined whether the national provisions in question fall within the coordinated field of Directive 2000/31. If that is the case and if the national provisions at issue prove to be contrary to the provisions of that directive, those national provisions would then take precedence over the provisions of Directive 2006/123.

33.In that regard, Amazon and the Commission claim that the legislation in question falls within the coordinated field of Directive 2000/31.

34.Under Article 3(2) of Directive 2000/31, Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State. The ‘coordinated field’ is defined in Article 2(h) of Directive 2000/31 as requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.

35.Directive 2000/31 is therefore based on a ‘country of origin’ approach. (8) Access and exercise requirements are imposed virtually without exception by the Member State of origin.

36.Nevertheless, requirements such as those applicable to goods as such and those applicable to the delivery of goods are excluded from the coordinated field under Article 2(h)(ii) of Directive 2000/31.

37.The question therefore arises as to whether a measure relating to delivery charges which does not impose a specific requirement as to how the goods must be delivered, such as that at issue in the main proceedings, constitutes a requirement applicable to the delivery of goods.

38.According to Amazon and the Commission, that is not the case. They claim that the legislation in question deals with the price of online transactions and does not concern the specific conditions relating to the delivery of a book as such. According to Amazon, that legislation does not cover delivery service providers and does not affect undertakings specialising (solely) in delivery activities. This leads Amazon and the Commission to claim that there is no requirement applicable to the delivery of goods under Article 2(h)(ii) of Directive 2000/31.

39.I am not convinced by those arguments.

40.First of all, it must be recalled that the Court has previously held that, while national rules relating to the selling of contact lenses fall within the scope of Directive 2000/31 since they concern the act of selling such lenses via the internet, that was not the case, however, in respect of national rules relating to the supply of contact lenses. (9) The purpose and effect of the legislation in question here is to regulate the home delivery of books. In that context, I cannot agree with Amazon’s and the Commission’s argument that, in essence, the delivery of a book is an ancillary and inseparable condition of online sales. (10)

41.It is certainly true that consumers, when purchasing a book online, carry out, from their point of view, a single transaction. Nevertheless, the fact remains that, legally and in practice, two transactions are involved, namely the sale of a book and its subsequent delivery.

42.Moreover, it cannot be called an ‘indivisible transaction’ in so far as the legislation in question refers only to home deliveries. The requirements to charge for delivery apply irrespective of whether or not the book is purchased on the internet: as soon as a home delivery takes place, a charge is applied. By contrast, for orders placed online and collected from a store, there is no obligation to invoice any delivery fees.

43.In those circumstances, I consider that the legislation in question is not covered by the coordinated field under Article 2(h)(ii) of Directive 2000/31 and, consequently, that Article 3(2) of that directive is not applicable, which means that it is not the rules laid down by the country of origin in respect of delivery charges that apply to Amazon.

B.The first and second questions referred for a preliminary ruling: Directive 2006/123

44.By the first and second questions, which it is appropriate to examine together, the referring court seeks to ascertain, in the first place, whether Article 1(4) of Directive 2006/123 must be interpreted as excluding from the scope of that directive national legislation that sets a minimum charge for the home delivery of an order comprising one or more books; in the second place, if that question is answered in the negative, whether the promotion of cultural diversity provided for by that provision, read in conjunction with Article 16(1)(b) of that directive, could justify such a measure, and, in the third place, in essence, assuming that that directive is applicable, whether the legislation in question may be examined in the light of primary EU law.

1.Specific obligations arising from Directive 2006/123

45.Where Directive 2006/123 applies to an activity, the Member State concerned is required, inter alia, to remove restrictions on the freedom of establishment and the freedom to provide services. In that regard, Article 16 of that directive provides that restrictions are permissible only if they are justified by one of the overriding reasons relating to the public interest listed in that provision, proportionate and non-discriminatory. In addition to that general obligation, Member States must comply with a number of other more specific obligations.

46.Those obligations entail, inter alia, administrative simplification (11) by creating points of single contact (12) and providing for procedures by electronic means, (13) the obligations to provide assistance to recipients of services, (14) to ensure that providers make a range of information available to recipients, (15) and to engage in administrative cooperation with the other Member States. (16)

47.Being subject to the provisions of Directive 2006/123 therefore has tangible consequences for the Member States.

2.Article 1(4) of Directive 2006/123

48.I recall that Article 1 of Directive 2006/123, entitled ‘Subject matter’, provides, in paragraph 1 thereof, that the directive aims to ‘[establish] general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services’.

49.Paragraphs 2 to 6 (17) of that article then set out the matters which Directive 2006/123 ‘does not deal with’ and which it ‘does not affect’ and, in particular, paragraph 4 states that it ‘does not affect’ measures taken at [EU] or national level, in the respect of [EU] law, ‘in order to promote cultural and linguistic diversity and to ensure the defence of pluralism’. (18)

50.By contrast, Article 2 of Directive 2006/123, entitled ‘Scope’, provides, in paragraph 1 thereof, that that directive is to apply to services supplied by providers established in a Member State and, in paragraph 2, lays down a series of exceptions to that principle. It states that that directive ‘shall not apply’ to a whole range of ‘activities’.

51.A reading of Articles 1 and 2 of Directive 2006/123 leads me to ask the following question: why does that directive devote two articles to its subject matter and scope, which intuitively seem to be one and the same thing? And how can the different wording used in the different paragraphs be explained?

52.As regards the wording of Article 1(4) of Directive 2006/123 and, in particular, the words ‘does not affect’, it should be observed that that wording is unfortunate, to say the least, since legal provisions must be prescriptive rather than descriptive. A prescriptive provision is one stipulating whether or not a legal act applies to certain areas of law. With that in mind, Article 2 of that directive is clear: that directive does not apply to a number of clearly defined areas of law. The same cannot be said of Article 1(4) of that directive, which is the subject of the examination. The use of the descriptive words ‘does not affect’ keeps the reader in the dark. Why ‘does not affect’? Because the provision says so? All of this might suggest that the EU legislature did not intend to confer a legal value on Article 1(4) of that directive. It merely considered it appropriate to point out that, in its view, Directive 2006/123 is not such as to affect the matters referred to in Article 1(4) of that directive, namely the protection or promotion of cultural or linguistic diversity or media pluralism.

53.I must admit that it would be tempting to consider that the provision in Article 1(4) of Directive 2006/123 has no legal value and to assert that it is merely a descriptive and narrative standard, (19) which may be disregarded for the purposes of legal analysis.

54.The consequence of such reasoning would be that the legislation in question could be assessed in the light of Directive 2006/123. This would mean, inter alia, that Article 16 of that directive would be applicable, without the legislation being justifiable, because the protection of linguistic diversity is not one of the overriding reasons relating to the public interest listed in that provision.

55.Nevertheless, such an approach cannot be envisaged for the following reasons.

56.It is, in my view, difficult to imagine that a provision of a legal act would be completely devoid of any legal effect. In my view, each paragraph of Article 1 of Directive 2006/123 must be carefully assessed and interpreted taking into account the nature of the measures referred to, even though, as I shall demonstrate later in this Opinion, none of the possible interpretations of Article 1(4) of that directive is truly satisfactory.

57.In that regard, I note that any literal and semantic interpretation seeking to establish a difference between the terms concerned (20) is untenable since no such difference exists in certain language versions of Directive 2006/123. (21) Consequently, given that (i) all the official languages of the European Union are authentic drafting languages and therefore (ii) all the language versions of an act of the European Union must, as a matter of principle, be recognised as having the same value, (iii) an interpretation of a provision of EU law thus involves a comparison of the different language versions (23)

57.) and (iv) the various language versions of a text of EU law must be given a uniform interpretation, (24) I would propose to the Court not to search for a difference between the terms ‘ne porte pas atteinte’, ‘n’affecte pas’ and ‘ne s’applique pas’, used in (the French version of) Article 1 of Directive 2006/123.

58.I shall now turn to the scheme and structure of Directive 2006/123 in order to seek an answer to the question referred.

59.First, it must be borne in mind that the objective of Directive 2006/123 is the same as that pursued by the fundamental freedoms of the FEU Treaty, namely the elimination of barriers to free movement. In that context, it is well known that, because of their cross-cutting nature, fundamental freedoms are capable of undermining any conceivable subject matter. If the EU legislature had merely stated that the freedom of establishment and the free movement of services ‘do not adversely affect’ cultural diversity, that would be a logical impossibility. That indicates that that legislature intended to give legal effect to Article 1(4) of Directive 2006/123.

60.Second, it should not be overlooked that the FEU Treaty, on the one hand, and Directive 2006/123, on the other, use different methods to attain the common objective of eliminating restrictions on the freedom to provide services. (25) The FEU Treaty primarily targets ‘restrictions on freedom to provide services within the Union’. (26) It pursues ‘negative integration’ by prohibiting barriers to trade in services. (27) Directive 2006/123, by contrast, lays the emphasis on and specifically targets service activities. As an act of secondary law, it can, with a higher degree of detail, address the problems encountered by service providers when they are faced with obstacles. This is why it focuses on the activity of service providers and its entire structure is geared towards service activities. (28) It is therefore also logical that Article 2 of Directive 2006/123, which defines the scope of that directive, refers to service activities.

61.But what about measures adopted at national level which aim to protect or promote linguistic diversity and which, by definition, have a broader scope than activities? What about the areas that the legislature might have wanted to exclude from the directive? My understanding of the measures referred to in Article 2 of Directive 2006/123 is that the EU legislature’s intention was not to exclude them from the scope of the directive, but to point out that that directive must be interpreted in the light of those measures, which means, inter alia, that such measures may serve as a means of justifying an obstacle to the freedom to provide services.

62.In the light of that finding, it is now necessary to examine how it is established that legislation falls within the scope of the protection of cultural diversity.

63.It is not sufficient for a Member State simply to claim that legislation falls within the scope of the protection of cultural diversity, since, according to such an approach, the Member States could unilaterally determine certain aspects of the scope of Directive 2006/123.

64.A Member State is therefore required to justify national legislation which aims to promote linguistic diversity in the same way as it justifies an obstacle, by adducing evidence that the legislation is proportionate, that is to say, that it is capable of achieving the aim that is pursued and necessary for that purpose.

65.In so far as Article 1(4) of Directive 2006/123 does not define the scope of that directive, it should be considered that it is in fact a means of justifying an obstacle, namely the protection of cultural diversity. (29) I am well aware that such a solution amounts, in essence, to accepting an overriding reason relating to the public interest that is additional to those mentioned in Article 16(3) of Directive 2006/123. By introducing Article 1(4) into Directive 2006/123 at the end of the legislative procedure, the legislature wanted to ensure that a Member State could adopt measures to promote linguistic diversity.

66.It follows, in my view, that a national measure aimed at promoting cultural diversity is governed by the provisions of Directive 2006/123 and may potentially be justified if it satisfies the ‘classic’ conditions laid down in Article 16 of that directive, such as, inter alia, the principle of proportionality.

67.I therefore propose that the answer to the first question referred should be that Article 1(4) of Directive 2006/123 must be interpreted as meaning that national legislation that sets a minimum charge for the home delivery of an order comprising one or more books comes within the scope of that directive and may be justified if the conditions laid down in Article 16 of Directive 2006/123 are satisfied.

68.As regards the question whether primary law applies where Directive 2006/123 is applicable, the answer follows from settled case-law: since the matter comes within the scope of Directive 2006/123, there is no need to refer to Articles 49 or 56 TFEU, or to other fundamental freedoms of the internal market.

C.The third question referred for a preliminary ruling

69.In view of my proposed answer to the first and second questions referred for a preliminary ruling, the third question referred becomes hypothetical. I shall nevertheless examine it in case the Court should consider that primary law is applicable to the present case.

70.By its third question, the referring court is asking, in essence, whether a national measure that sets a minimum charge for the home delivery of books constitutes an obstacle under Article 34 TFEU or Article 56 TFEU.

71.The referring court therefore appears to seek to determine only whether Article 34 TFEU or Article 56 TFEU are applicable, without, however, seeking guidance on a possible justification for the legislation in question.

72.It is common ground that the legislation at issue concerns both books as goods and their delivery as a service. Where cases involve both goods and services, the Court usually examines only one freedom on the basis of a ‘centre of gravity’ test. (30) In that regard, the Court has consistently held that where a national measure affects both the freedom to provide services and the free movement of goods, the Court will, in principle, examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it. (31) In that context, the Court has tended to deal with retail cases under the free movement of goods. (32) The Court does not, however, deny that there are multiple aspects to one economic activity from the point of view of the fundamental freedoms, even if it has analysed a case solely from the perspective of just one freedom.

73.Thus, in the case which gave rise to the judgment in Burmanjer and Others, (33) the Court held that it could not be excluded that the sale of a product may be accompanied by an activity with ‘services’ aspects. Nonetheless, that fact cannot be sufficient, by itself, to classify an economic operation such as the itinerant sale as a ‘provision of services’ within the meaning of Article 56 TFEU. On the contrary, it must be established, in each case, whether that service is or is not wholly secondary in relation to the elements concerning the free movement of goods. (34)

74.As regards analysing a situation solely in the light of a single freedom, I referred, in my Opinion in X and Visser, (35) to the logic of the ‘centre of gravity’ test: in a situation where the Court is called upon to interpret primary law only, it is natural that it focuses on the predominant fundamental freedom. Why should it carry out the same test for another freedom, only to reach the same result? After all, the fundamental freedoms all have the same objective: to remove barriers to trade within the internal market. Whether a specific situation is caught by, say, Article 49 TFEU only, Article 34 TFEU only, Articles 34 and 56 TFEU, or Article 56 TFEU only, is, in the vast majority of cases, not necessarily of crucial importance.

75.As regards the legislation at issue in the main proceedings, I am of the opinion that the relevant fundamental freedom is the free movement of goods, enshrined in Article 34 TFEU.

76.The purpose and effect of that legislation is to govern the online sale of books; that legislation is intended to raise the price of an online book order. It is therefore the overall price of books, namely goods, which is increased as a result of that legislation.

77.As regards, more specifically, the sale of medicinal products, (36) contact lenses (37) or image storage media, (38) the Court has held that a national measure concerning an arrangement characterised by the sale of goods via the internet and the delivery of those goods to the customer’s home is to be examined only with regard to the rules relating to the free movement of goods and, consequently, with regard to Articles 34 and 36 TFEU.

78.The same applies, in my view, to the legislation at issue in the main proceedings. Although it expressly concerns the price paid by the purchaser for the book delivery service, it in no way governs the terms of the contracts concluded with the providers of that service, or the price which they are required to invoice for that service. The legislation in question is therefore not aimed at those service providers but at the sellers of books.

79.That legislation must therefore be analysed in the light of Articles 34 and 36 TFEU.

80.It should be noted, in order to dispel any possible doubt that the referring court might have in that regard, that the legislation in question does not constitute a ‘selling arrangement’ within the meaning of the judgment in Keck. (39)

81.It is well known that the Court has never given a positive definition of the concept of ‘selling arrangements’ (40) and interprets that concept restrictively.

82.Following the Opinion of Advocate General Wahl on that point, (41) the Court held that ‘the concept of “selling arrangements” covers only provisions of national law that regulate the manner in which goods may be marketed, [and] rules concerning the manner in which goods may be transported are not within the scope of that concept’. (42)

83.Moreover, the Court has held that a restriction on distance selling is, by definition, more likely to affect economic operators from other Member States than national operators (43) and that access to the market for the former is therefore impeded. (44)

84.It should therefore be stated, at this stage, that the legislation in question does not constitute a selling arrangement that would have the effect of removing it from the scope of Article 34 TFEU.

V.Conclusion

85.In the light of all of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows:

Article 1(4) and Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market

must be interpreted as meaning that national legislation that sets a minimum charge for the home delivery of an order comprising one or more books comes within the scope of that directive and may be justified if the conditions laid down in Article 16 of that directive are satisfied.

20Namely the French terms ‘ne porte pas atteinte’, ‘n’affecte pas’ and ‘ne s’applique pas’.

21Consistent terminology (and not three different terms, like in the French-language version) is used in several language versions, inter alia the Spanish (‘no afecta’), English (‘does not affect’), German (‘berührt nicht’), Italian (‘non pregiudica’), Polish (‘nie ma wpływu’), Portuguese (‘não afecta’) and Romanian (‘nu afectează’) versions.

22See, inter alia, judgment of 25 June 2020, A and Others (Wind turbines at Aalter and Nevele) (C‑24/19, EU:C:2020:503, paragraph 39 and the case-law cited).

23See judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 18).

24See, by way of example, judgment of 30 May 2013, Genil 48 and Comercial Hostelera de Grandes Vinos (C‑604/11, EU:C:2013:344, paragraph 38 and the case-law cited).

25See also my Opinion in X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 78).

26See Article 56(1) TFEU.

27The second and third paragraphs of Article 57 TFEU refer to ‘activities’, but only by way of illustration.

28The term ‘activity’, in singular or plural, is used no less than 146 times in Directive 2006/123: 85 times in the recitals and 61 times in the provisions of that directive. By contrast, the term ‘barrier(s)’ is referred to 15 times, and only in the recitals, whereas the term ‘restriction(s)’ appears on 20 occasions: 15 times in the recitals and 5 times in the provisions.

29It would not make sense to carry out a full examination of the proportionality of a measure in order to determine the scope of Directive 2006/123.

30See also my Opinion in X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 90). Where a particular fundamental freedom cannot simply be disregarded as being completely secondary, the Court examines the two freedoms together and in turn. See in detail my Opinion in X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, points 89 to 95).

31See judgments of 24 March 1994, Schindler (C‑275/92, EU:C:1994:119, paragraph 22); of 14 October 2004, Omega (C‑36/02, EU:C:2004:614, paragraph 26); of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraph 35); and of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 43).

32See judgment of 13 January 2000, TK-Heimdienst (C‑254/98, EU:C:2000:12).

33Judgment of 26 May 2005 (C‑20/03, EU:C:2005:307, paragraph 34).

34See judgment of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraph 34).

35C‑360/15 and C‑31/16, EU:C:2017:397, point 92.

36See judgment of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 44). See also judgments of 19 October 2016, Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:776, paragraph 20), and of 27 February 2025, Apothekerkammer Nordrhein (C‑517/23, EU:C:2025:122, paragraph 61), in which the Court directly addressed the free movement of goods without even mentioning another fundamental freedom stemming from the Treaty.

37See judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraphs 45 and 46).

38See judgment of 14 February 2008, Dynamic Medien (C‑244/06, EU:C:2008:85). Here too, the Court directly addressed the free movement of goods without even mentioning another fundamental freedom stemming from the Treaty.

39Judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905 paragraph 16).

40See, inter alia, ‘Artikel 34 AEUV’, in Haltern, U., Müller-Graff, P.-Chr., in Pechstein, M., Nowak, C., and Häde, U., (eds), Frankfurter Kommentar zu EUV, GRC und AEUV, Vol. II, Mohr Siebeck, Tübingen, 2023 (2nd Ed.), paragraph 128, and Kellerhals, A., Uebe, W., ‘Das Binnenmarktrecht der Warenverkehrsfreiheit’, in Müller-Graff, P.-Chr., (ed.), Europäisches Wirtschaftsordnungsrecht (Enzyklopädie Europarecht, Band 4), 2nd Ed., Nomos, Baden-Baden, 2021, paragraph 40.

41See Opinion of Advocate General Wahl in Austria v Germany (C‑591/17, EU:C:2019:99, point 118).

42See judgment of 18 June 2019, Austria v Germany (C‑591/17, EU:C:2019:504, paragraph 129).

43See, to that effect, with regard to the distance selling of pharmaceutical products, judgment of 19 October 2016, Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:776, paragraph 23 and the case-law cited).

44See, to that effect, with regard to the distance selling of pharmaceutical products, my Opinion in Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:394, point 35 et seq.). Some academic writers share that view and have argued that a fixed retail price can have negative consequences on imports, resulting from a restriction on the competitive advantage of an importer, see ‘Artikel 34 AEUV’, in P.-Chr. Müller-Graff, P.-Chr., in von der Groeben, H., Schwarze, J., and atje, A., (eds), Europäisches Unionsrecht (Kommentar), 7th Ed., Nomos, Baden-Baden, paragraph 143.