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.