Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the

organization of working time

Official Journal L 307 , 13/12/1993 p. 0018 - 0024

COUNCIL DIRECTIVE 93/104/EC of 23 November 1993 concerning certain aspects of

the organization of working time

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular

Article 118a thereof,

Having regard to the proposal from the Commission(1) ,

In cooperation with the European Parliament(2) ,

Having regard to the opinion of the Economic and Social Committee(3) ,

Whereas Article 118a of the Treaty provides that the Council shall adopt, by means

of directives, minimum requirements for encouraging improvements, especially in the

working environment, to ensure a better level of protection of the safety and health

of workers;

Whereas, under the terms of that Article, those directives are to avoid imposing

administrative, financial and legal constraints in a way which would hold back the

creation and development of small and medium-sized undertakings;

Whereas the provisions of Council Directive 89/391/EEC of 12 June 1989 on the

introduction of measures to encourage improvements in the safety and health of

workers at work(4) are fully applicable to the areas covered by this Directive

without prejudice to more stringent and/or specific provisions contained therein;

Whereas the Community Charter of the Fundamental Social Rights of Workers,

adopted at the meeting of the European Council held at Strasbourg on 9 December

1989 by the Heads of State or of Government of 11 Member States, and in

particular points 7, first subparagraph, 8 and 19, first subparagraph, thereof,

declared that:

'7. The completion of the internal market must lead to an improvement in the living

and working conditions of workers in the European Community. This process must

result from an approximation of these conditions while the improvement is being

maintained, as regards in particular the duration and organization of working time

and forms of employment other than open-ended contracts, such as fixed-term

contracts, part-time working, temporary work and seasonal work.

8. Every worker in the European Community shall have a right to a weekly rest

period and to annual paid leave, the duration of which must be progressively

harmonized in accordance with national practices.

19. Every worker must enjoy satisfactory health and safety conditions in his working

environment. Appropriate measures must be taken in order to achieve further

harmonization of conditions in this area while maintaining the improvements made.';

Whereas the improvement of workers' safety, hygiene and health at work is an

objective which should not be subordinated to purely economic considerations;

Whereas this Directive is a practical contribution towards creating the social

dimension of the internal market;

Whereas laying down minimum requirements with regard to the organization of

working time is likely to improve the working conditions of workers in the

Community;

Whereas, in order to ensure the safety and health of Community workers, the latter

must be granted minimum daily, weekly and annual periods of rest and adequate

breaks; whereas it is also necessary in this context to place a maximum limit on

weekly working hours;

Whereas account should be taken of the principles of the International Labour

Organization with regard to the organization of working time, including those relating

to night work;

Whereas, with respect to the weekly rest period, due account should be taken of

the diversity of cultural, ethnic, religious and other factors in the Member States;

whereas, in particular, it is ultimately for each Member State to decide whether

Sunday should be included in the weekly rest period, and if so to what extent;

Whereas research has shown that the human body is more sensitive at night to

environmental disturbances and also to certain burdensome forms of work

organization and that long periods of night work can be detrimental to the health of

workers and can endanger safety at the workplace;

Whereas there is a need to limit the duration of periods of night work, including

overtime, and to provide for employers who regularly use night workers to bring this

information to the attention of the competent authorities if they so request;

Whereas it is important that night workers should be entitled to a free health

assessment prior to their assignment and thereafter at regular intervals and that

whenever possible they should be transferred to day work for which they are suited

if they suffer from health problems;

Whereas the situation of night and shift workers requires that the level of safety

and health protection should be adapted to the nature of their work and that the

organization and functioning of protection and prevention services and resources

should be efficient;

Whereas specific working conditions may have detrimental effects on the safety

and health of workers; whereas the organization of work according to a certain

pattern must take account of the general principle of adapting work to the worker;

Whereas, given the specific nature of the work concerned, it may be necessary to

adopt separate measures with regard to the organization of working time in certain

sectors or activities which are excluded from the scope of this Directive;

Whereas, in view of the question likely to be raised by the organization of working

time within an undertaking, it appears desirable to provide for flexibility in the

application of certain provisions of this Directive, whilst ensuring compliance with

the principles of protecting the safety and health of workers;

Whereas it is necessary to provide that certain provisions may be subject to

derogations implemented, according to the case, by the Member States or the two

sides of industry; whereas, as a general rule, in the event of a derogation, the

workers concerned must be given equivalent compensatory rest periods,

HAS ADOPTED THIS DIRECTIVE:

SECTION I SCOPE AND DEFINITIONS

Article 1

Purpose and scope

1. This Directive lays down minimum safety and health requirements for the

organization of working time.

2. This Directive applies to:

(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and

maximum weekly working time; and

(b) certain aspects of night work, shift work and patterns of work.

3. This Directive shall apply to all sectors of activity, both public and private, within

the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of

this Directive, with the exception of air, rail, road, sea, inland waterway and lake

transport, sea fishing, other work at sea and the activities of doctors in training;

4. The provisions of Directive 89/391/EEC are fully applicable to the matters

referred to in paragraph 2, without prejudice to more stringent and/or specific

provisions contained in this Directive.

Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:

1. working time shall mean any period during which the worker is working, at the

employer's disposal and carrying out his activity or duties, in accordance with

national laws and/or practice;

2. rest period shall mean any period which is not working time;

3. night time shall mean any period of not less than seven hours, as defined by

national law, and which must include in any case the period between midnight and 5

a. m.;

4. night worker shall mean:

(a) on the one hand, any worker, who, during night time, works at least three hours

of his daily working time as a normal course; and

(b) on the other hand, any worker who is likely during night time to work a certain

proportion of his annual working time, as defined at the choice of the Member State

concerned:

(i) by national legislation, following consultation with the two sides of industry; or

(ii) by collective agreements or agreements concluded between the two sides of

industry at national or regional level;

5. shift work shall mean any method of organizing work in shifts whereby workers

succeed each other at the same work stations according to a certain pattern,

including a rotating pattern, and which may be continuous or discontinuous,

entailing the need for workers to work at different times over a given period of days

or weeks;

6. shift worker shall mean any worker whose work schedule is part of shift work.

SECTION II MINIMUM REST PERIODS - OTHER ASPECTS OF THE ORGANIZATION OF

WORKING TIME

Article 3

Daily rest

Member States shall take the measures necessary to ensure that every worker is

entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.

Article 4

Breaks

Member States shall take the measures necessary to ensure that, where the

working day is longer than six hours, every worker is entitled to a rest break, the

details of which, including duration and the terms on which it is granted, shall be

laid down in collective agreements or agreements between the two sides of industry

or, failing that, by national legislation.

Article 5

Weekly rest period

Member States shall take the measures necessary to ensure that, per each

seven-day period, every worker is entitled to a minimum uninterrupted rest period of

24 hours plus the 11 hours' daily rest referred to in Article 3.

The minimum rest period referred to in the first subparagraph shall in principle

include Sunday.

If objective, technical or work organization conditions so justify, a minimum rest

period of 24 hours may be applied.

Article 6

Maximum weekly working time

Member States shall take the measures necessary to ensure that, in keeping with

the need to protect the safety and health of workers:

1. the period of weekly working time is limited by means of laws, regulations or

administrative provisions or by collective agreements or agreements between the

two sides of industry;

2. the average working time for each seven-day period, including overtime, does

not exceed 48 hours.

Article 7

Annual leave

1. Member States shall take the measures necessary to ensure that every worker is

entitled to paid annual leave of at least four weeks in accordance with the

conditions for entitlement to, and granting of, such leave laid down by national

legislation and/or practice.

2. The minimum period of paid annual leave may not be replaced by an allowance in

lieu, except where the employment relationship is terminated.

SECTION III NIGHT WORK - SHIFT WORK - PATTERNS OF WORK

Article 8

Length of night work

Member States shall take the measures necessary to ensure that:

1. normal hours of work for night workers do not exceed an average of eight hours

in any 24-hour period;

2. night workers whose work involves special hazards or heavy physical or mental

strain do not work more than eight hours in any period of 24 hours during which

they perform night work.

For the purposes of the aforementioned, work involving special hazards or heavy

physical or mental strain shall be defined by national legislation and/or practice or

by collective agreements or agreements concluded between the two sides of

industry, taking account of the specific effects and hazards of night work.

Article 9

Health assessment and transfer of night workers to day work

1. Member States shall take the measures necessary to ensure that:

(a) night workers are entitled to a free health assessment before their assignment

and thereafter at regular intervals;

(b) night workers suffering from health problems recognized as being connected

with the fact that they perform night work are transferred whenever possible to day

work to which they are suited.

2. The free health assessment referred to in paragraph 1 (a) must comply with

medical confidentiality.

3. The free health assessment referred to in paragraph 1 (a) may be conducted

within the national health system.

Article 10

Guarantees for night-time working

Member States may make the work of certain categories of night workers subject to

certain guarantees, under conditions laid down by national legislation and/or

practice, in the case of workers who incur risks to their safety or health linked to

night-time working.

Article 11

Notification of regular use of night workers

Member States shall take the measures necessary to ensure that an employer who

regularly uses night workers brings this information to the attention of the

competent authorities if they so request.

Article 12

Safety and health protection

Member States shall take the measures necessary to ensure that:

1. night workers and shift workers have safety and health protection appropriate to

the nature of their work;

2. appropriate protection and prevention services or facilities with regard to the

safety and health of night workers and shift workers are equivalent to those

applicable to other workers and are available at all times.

Article 13

Pattern of work

Member States shall take the measures necessary to ensure that an employer who

intends to organize work according to a certain pattern takes account of the

general principle of adapting work to the worker, with a view, in particular, to

alleviating monotonous work and work at a predetermined work-rate, depending on

the type of activity, and of safety and health requirements, especially as regards

breaks during working time.

SECTION IV MISCELLANEOUS PROVISIONS

Article 14

More specific Community provisions

The provisions of this Directive shall not apply where other Community instruments

contain more specific requirements concerning certain occupations or occupational

activities.

Article 15

More favourable provisions

This Directive shall not affect Member States' right to apply or introduce laws,

regulations or administrative provisions more favourable to the protection of the

safety and health of workers or to facilitate or permit the application of collective

agreements or agreements concluded between the two sides of industry which are

more favourable to the protection of the safety and health of workers.

Article 16

Reference periods

Member States may lay down:

1. for the application of Article 5 (weekly rest period), a reference period not

exceeding 14 days;

2. for the application of Article 6 (maximum weekly working time), a reference period

not exceeding four months.

The periods of paid annual leave, granted in accordance with Article 7, and the

periods of sick leave shall not be included or shall be neutral in the calculation of

the average;

3. for the application of Article 8 (length of night work), a reference period defined

after consultation of the two sides of industry or by collective agreements or

agreements concluded between the two sides of industry at national or regional

level.

If the minimum weekly rest period of 24 hours required by Article 5 falls within that

reference period, it shall not be included in the calculation of the average.

Article 17

Derogations

1. With due regard for the general principles of the protection of the safety and

health of workers, Member States may derogate from Article 3, 4, 5, 6, 8 or 16

when, on account of the specific characteristics of the activity concerned, the

duration of the working time is not measured and/or predetermined or can be

determined by the workers themselves, and particularly in the case of:

(a) managing executives or other persons with autonomous decision-taking powers;

(b) family workers; or

(c) workers officiating at religious ceremonies in churches and religious communities.

2. Derogations may be adopted by means of laws, regulations or administrative

provisions or by means of collective agreements or agreements between the two

sides of industry provided that the workers concerned are afforded equivalent

periods of compensatory rest or that, in exceptional cases in which it is not

possible, for objective reasons, to grant such equivalent periods of compensatory

rest, the workers concerned are afforded appropriate protection:

2.1. from Articles 3, 4, 5, 8 and 16:

(a) in the case of activities where the worker's place of work and his place of

residence are distant from one another or where the worker's different places of

work are distant from one another;

(b) in the case of security and surveillance activities requiring a permanent

presence in order to protect property and persons, particularly security guards and

caretakers or security firms;

(c) in the case of activities involving the need for continuity of service or

production, particularly:

(i) services relating to the reception, treatment and/or care provided by hospitals or

similar establishments, residential institutions and prisons;

(ii) dock or airport workers;

(iii) press, radio, television, cinematographic production, postal and

telecommunications services, ambulance, fire and civil protection services;

(iv) gas, water and electricity production, transmission and distribution, household

refuse collection and incineration plants;

(v) industries in which work cannot be interrupted on technical grounds;

(vi) research and development activities;

(vii) agriculture;

(d) where there is a foreseeable surge of activity, particularly in:

(i) agriculture;

(ii) tourism;

(iii) postal services;

2.2. from Articles 3, 4, 5, 8 and 16:

(a) in the circumstances described in Article 5 (4) of Directive 89/391/EEC;

(b) in cases of accident or imminent risk of accident;

2.3. from Articles 3 and 5:

(a) in the case of shift work activities, each time the worker changes shift and

cannot take daily and/or weekly rest periods between the end of one shift and the

start of the next one;

(b) in the case of activities involving periods of work split up over the day,

particularly those of cleaning staff.

3. Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective

agreements or agreements concluded between the two sides of industry at national

or regional level or, in conformity with the rules laid down by them, by means of

collective agreements or agreements concluded between the two sides of industry

at a lower level.

Member States in which there is no statutory system ensuring the conclusion of

collective agreements or agreements concluded between the two sides of industry

at national or regional level, on the matters covered by this Directive, or those

Member States in which there is a specific legislative framework for this purpose

and within the limits thereof, may, in accordance with national legislation and/or

practice, allow derogations from Articles 3, 4, 5, 8 and 16 by way of collective

agreements or agreements concluded between the two sides of industry at the

appropriate collective level.

The derogations provided for in the first and second subparagraphs shall be allowed

on condition that equivalent compensating rest periods are granted to the workers

concerned or, in exceptional cases where it is not possible for objective reasons to

grant such periods, the workers concerned are afforded appropriate protection.

Member States may lay down rules:

- for the application of this paragraph by the two sides of industry, and

- for the extension of the provisions of collective agreements or agreements

concluded in conformity with this paragraph to other workers in accordance with

national legislation and/or practice.

4. The option to derogate from point 2 of Article 16, provided in paragraph 2, points

2.1. and 2.2. and in paragraph 3 of this Article, may not result in the establishment

of a reference period exceeding six months.

However, Member States shall have the option, subject to compliance with the

general principles relating to the protection of the safety and health of workers, of

allowing, for objective or technical reasons or reasons concerning the organization

of work, collective agreements or agreements concluded between the two sides of

industry to set reference periods in no event exceeding 12 months.

Before the expiry of a period of seven years from the date referred to in Article 18

(1) (a), the Council shall, on the basis of a Commission proposal accompanied by an

appraisal report, re-examine the provisions of this paragraph and decide what action

to take.

Article 18

Final provisions

1. (a) Member States shall adopt the laws, regulations and administrative provisions

necessary to comply with this Directive by 23 November 1996, or shall ensure by

that date that the two sides of industry establish the necessary measures by

agreement, with Member States being obliged to take any necessary steps to

enable them to guarantee at all times that the provisions laid down by this Directive

are fulfilled.

(b) (i) However, a Member State shall have the option not to apply Article 6, while

respecting the general principles of the protection of the safety and health of

workers, and provided it takes the necessary measures to ensure that:

- no employer requires a worker to work more than 48 hours over a seven-day

period, calculated as an average for the reference period referred to in point 2 of

Article 16, unless he has first obtained the worker's agreement to perform such

work,

- no worker is subjected to any detriment by his employer because he is not willing

to give his agreement to perform such work,

- the employer keeps up-to-date records of all workers who carry out such work,

- the records are placed at the disposal of the competent authorities, which may,

for reasons connected with the safety and/or health of workers, prohibit or restrict

the possibility of exceeding the maximum weekly working hours,

- the employer provides the competent authorities at their request with information

on cases in which agreement has been given by workers to perform work exceeding

48 hours over a period of seven days, calculated as an average for the reference

period referred to in point 2 of Article 16.

Before the expiry of a period of seven years from the date referred to in (a), the

Council shall, on the basis of a Commission proposal accompanied by an appraisal

report, re-examine the provisions of this point (i) and decide on what action to

take.

(ii) Similarly, Member States shall have the option, as regards the application of

Article 7, of making use of a transitional period of not more than three years from

the date referred to in (a), provided that during that transitional period:

- every worker receives three weeks' paid annual leave in accordance with the

conditions for the entitlement to, and granting of, such leave laid down by national

legislation and/or practice, and

- the three-week period of paid annual leave may not be replaced by an allowance

in lieu, except where the employment relationship is terminated.

(c) Member states shall forthwith inform the Commission thereof.

2. When Member States adopt the measures referred to in paragraph 1, they shall

contain a reference to this Directive or shall be accompanied by such reference on

the occasion of their official publication. The methods of making such a reference

shall be laid down by the Member states.

3. Without prejudice to the right of Member States to develop, in the light of

changing circumstances, different legislative, regulatory or contractual provisions in

the field of working time, as long as the minimum requirements provided for in this

Directive are complied with, implementation of this Directive shall not constitute

valid grounds for reducing the general level of protection afforded to workers.

4. Member States shall communicate to the Commission the texts of the provisions

of national law already adopted or being adopted in the field governed by this

Directive.

5. Member States shall report to the Commission every five years on the practical

implementation of the provisions of this Directive, indicating the viewpoints of the

two sides of industry.

The Commission shall inform the European Parliament, the Council, the Economic and

Social Committee and the Advisory Committee on Safety, Hygiene and Health

Protection at Work thereof.

6. Every five years the Commission shall submit to the European Parliament, the

Council and the Economic and Social Committee a report on the application of this

Directive taking into account paragraphs 1, 2, 3, 4 and 5.

Article 19

This Directive is addressed to the Member States.

Done at Brussels, 23 November 1993.

For the Council

The President

M. SMET

(1) OJ No C 254, 9. 10. 1990, p. 4.

(2) OJ No C 72, 18. 3. 1991, p. 95; and Decision of 27 October 1993 (not yet

published in the Official Journal).

(3) OJ No C 60, 8. 3. 1991, p. 26.

(4) OJ No L 183, 29. 6. 1989, p. 1.

Judgment of the Court of 28 February 1991.

Criminal proceedings against André Marchandise, Jean-Marie Chapuis and SA

Trafitex.

Reference for a preliminary ruling: Cour d'appel de Mons - Belgium.

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

National legislation prohibiting the employment of workers in retail shops on

Sundays after 12 noon.

Case C-332/89.

European Court Reports 1991 page I-1027

Operative part of the judgment

Content of the Court's judgment:

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)

Summary

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.

Parties

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

Grounds of the 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.

Decision on costs

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.

Operative part of the judgment

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.