61989J0332

++++

Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Legislation on Sunday as a day of rest for employees in the retail sector - Whether permissible - Treaty provisions on freedom to provide services and on competition - Inapplicable

(EEC Treaty, Arts. 3(f), 5, 30, 34, 59 to 66 and 85)

The prohibition contained in Article 30 of the EEC Treaty, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays after 12 noon.

Such legislation, which is not designed to control trade and affects the sale of both domestic and imported products, pursues an aim which is justified with regard to Community law since in seeking to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics it reflects certain political and economic choices. The restrictive effects on trade which may result do not seem disproportionate to the aim pursued.

The same is true of the prohibition under Article 34 of the Treaty, where such legislation is applied in accordance with objective criteria to all traders in a given sector, without distinguishing between goods which the consumer intends to use where they are bought and those which he wishes to export.

Neither Articles 59 to 66 nor the combined provisions of Articles 3(f), 5 and 85 of the Treaty are applicable.

In Case C-332/89

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d' Appel [Court of Appeal], Mons, for a preliminary ruling in the criminal proceedings before that court against

André Marchandise,

Jean-Marie Chapuis, and

Trafitex S.A.,

on the interpretation of Articles 3 (f), 5, 30 to 36, 59 to 66 and 85 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Díez de Velasco (Presidents of Chambers), R. Joliet, F. Grévisse and M. Zuleeg, Judges,

Advocate General: W. Van Gerven

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of:

André Marchandise, Jean-Marie Chapuis and Trafitex S.A., by Francis Bauduin, of the Brussels Bar, and by Jean Wagener, of the Luxembourg Bar,

the Commission of the European Communities, by René Barents, a member of its Legal Department, and Hervé Lehman, a French civil servant on secondment to that department, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral submissions of A. Marchandise, J.-M. Chapuis and Trafitex S.A., represented by Maîtres Bauduin and Tailleur, of the Brussels Bar, and the Commission at the hearing on 26 September 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 22 November 1990,

gives the following

Judgment

1 By a judgment of 5 October 1989, which was received at the Court on 27 October 1989, the Cour d' Appel, Mons, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 3 (f), 5, 30 to 36, 59 to 66 and 85 of that Treaty, with a view to determining whether national legislation prohibiting the employment of workers in retail shops on Sundays after 12 noon was compatible with those articles.

2 Under the combined provisions of Articles 11 and 14 (1) of the Belgian Loi sur le Travail [Labour Law] of 16 March 1971, it is prohibited to employ workers in retail shops on Sundays after 12 noon. Article 53 of that Law provides that an employer in breach of the prohibition is punishable by imprisonment and a fine.

3 André Marchandise, a director of Trafitex S.A., and Jean-Marie Chapuis, an employee of that company, were prosecuted for having employed on several occasions between 14 September 1986 and 14 December 1986 nine workers on a Sunday after 12 noon in a retail shop, contrary to the Loi sur le Travail of 16 March 1971.

4 On 1 June 1988 the Tribunal Correctionnel [Criminal Court], Charleroi found the accused guilty of the offences and fined them, with terms of imprisonment in the alternative - the sentences being suspended in the case of Jean-Marie Chapuis. In the same judgment Trafitex S.A. was declared liable in civil law to pay the fines.

5 All the parties appealed against the judgment, and the Fourth Chamber of the Cour d' Appel, Mons, sitting as a criminal court, made an order in which it referred to the Court for a preliminary ruling a question as to whether:

"Articles 1, 11, 14 (1), 53, 54, 57, 58 and 59 of the Law of 16 March 1971, as amended in particular by the Law of 20 July 1978 and by Royal Decree No. 15 of 23 October 1978, [are] contrary to Articles 3 (f), 5, 30 to 36, 59 to 66 and 85 of the Treaty of Rome of 25 March 1957".

6 Reference is made to the Report for the Hearing for a fuller account of the legal context and the facts of the dispute before the national court, the course of the procedure and the written submissions lodged with the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

7 It must be observed in limine that although the Court has no jurisdiction, in preliminary reference proceedings, to rule on the compatibility of a national provision with the Treaty, it is nevertheless empowered to provide the national court with all the criteria for the interpretation of Community law which will enable the latter to assess that compatibility for the purpose of giving judgment in the case before it.

Article 30 of the EEC Treaty

8 The Cour d' Appel seeks in essence to establish whether provisions prohibiting the employment of workers in retail shops on Sundays constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 30 of the Treaty.

9 National legislation which prohibits the employment of staff on Sundays in retail shops is not designed to control trade. None the less, it may entail restrictive effects on the free movement of goods. Although it is improbable that the closure of certain types of shop on Sundays will cause consumers to refrain altogether from purchasing products which are available on week-days, the fact remains that such a prohibition may have negative repercussions on the volume of sales and hence on the volume of imports.

10 Furthermore, legislation of that kind affects the sale of both domestic and imported products. In principle, the marketing of products imported from other Member States is not therefore made more difficult than the marketing of domestic products (see the judgment of the Court of 23 November 1989 in Case 145/88, Torfaen Borough Council v B & Q [1989] ECR 3851).

11 In the Torfaen judgment the Court ruled, in relation to similar national legislation prohibiting the opening of retail shops on Sundays, that such a prohibition was not compatible with the principle of the free movement of goods provided for in the Treaty unless any obstacle to Community trade thereby created did not exceed what was necessary in order to ensure the attainment of the objective in view and unless that objective was justified with regard to Community law.

12 That being so, it must first be stated that legislation such as the legislation at issue pursues an aim which is justified with regard to Community law. The Court has already held, in its judgment of 23 November 1989 in the Torfaen case, that national rules governing the opening hours of retail premises reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the Member States.

13 It must further be stated that the restrictive effects on trade which may stem from such rules do not seem disproportionate to the aim pursued.

14 In answer to the question submitted it must therefore be held that the prohibition contained in Article 30 of the Treaty, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays after 12 noon.

Article 34 of the EEC Treaty

15 The question submitted by the national court also seeks to establish whether the measure in question constitutes a quantitative restriction on exports for the purposes of Article 34 of the Treaty.

16 In that connexion it should be recalled that, in its judgment of 8 November 1979 in Case 15/79 (Groenveld v Produktschap voor Vee en Vlees, [1979] ECR 3409), the Court ruled in essence that a national measure which is applied objectively to the production of goods of a certain kind without drawing a distinction depending on whether such goods are intended for the national market or for export is not incompatible with Article 34 of the Treaty.

17 The answer to this part of the question submitted for a preliminary ruling must therefore be that national legislation prohibiting the employment of workers on Sundays after 12 noon is not incompatible with Article 34 of the Treaty, since it is not designed to control patterns of trade between Member States and is applied in accordance with objective criteria to all traders in a given sector, without distinguishing between goods which the consumer intends to use where they are bought and those which he wishes to export.

Articles 59 to 66 of the EEC Treaty

18 The national court also raises a question as to the validity of the measure at issue in the light of Articles 59 to 66 of the Treaty. Those articles seek to establish freedom to provide services within the Community. Article 60 of the Treaty provides that services are to be regarded as such where they are normally provided for remuneration, except inter alia where they are governed by the provisions on the free movement of goods.

19 The present case relates to legislation laying down rules for the conduct of the retail trade whose objective is worker protection. In view of those characteristics the legislation must be examined by reference to Article 30 of the Treaty, as the Court stressed in the Torfaen judgment, cited above. Accordingly, the provisions on the freedom to provide services cannot apply.

Articles 3 (f) and 85 of the EEC Treaty

20 Finally, the Cour d' Appel asks the Court to examine the national provisions in the light of Articles 3 (f), 5 and 85 of the Treaty.

21 The question raised by the national court with regard to those provisions must be construed as seeking in essence to determine whether or not national legislation prohibiting the employment of workers in retail shops on Sundays is compatible with the obligations imposed on Member States by Article 5 of the EEC Treaty, read in conjunction with Articles 3 (f) and 85.

22 It must be pointed out in that regard that Articles 85 and 86 of the Treaty per se are concerned only with the conduct of undertakings and not with national legislation. The Court has consistently held, however, that Articles 85 and 86 of the Treaty, in conjunction with Article 5, require the Member States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case, the Court has held, if a Member State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere (see the judgment of 21 September 1988 in Case 267/86, Van Eycke v ASPA [1988] ECR 4769, at paragraph 16).

23 In the present case there is no evidence before the Court to support the conclusion that the legislation at issue seeks to reinforce the effects of pre-existing agreements, decisions or concerted practices. Moreover, no aspect of the legislation is liable to deprive it of its official character.

Costs

24 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Cour d' Appel, Mons, by judgment of 5 October 1989 hereby rules that:

(1) The prohibition contained in Article 30 of the EEC Treaty, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays after 12 noon;

(2) The prohibition contained in Article 34 of the Treaty, properly construed, does not apply to such legislation;

(3) Neither Articles 59 to 66 nor the combined provisions of Articles 3 (f), 5 and 85 of the Treaty are applicable to such legislation.