4.

I now return to my consideration of the question raised by the Amtsgericht Wiesbaden in these proceedings. There are two aspects to the question, corresponding to the interpretation of Article 30 and of Article 34 of the EEC Treaty respectively. The measures to be examined in the light of each of those provisions are, on the one hand, the measure limiting the hours of nightwork in bakeries and, on the other, the measure prohibiting the transport, sale and delivery of fresh bakery and pastry products between 10 o'clock at night and 5.45 in the morning. It should indeed be remembered that Article 5 of the German Law on working hours in bakeries — the implementation of which in the main action has given rise to this application for a preliminary ruling — not only prohibits production in the above-mentioned establishments during the night but also prohibits the sale, transport or delivery to consumers or retailers of bakery products, regardless of origin, during the above-mentioned period. There is no difficulty in recognizing that the limitation of working hours does not per se come within the scope of Article 30; it may of course have an effect on imports — fostering them rather than restricting them — in so far as concerns countries which export the same products and adopt less stringent internal regulations. However, an appraisal of such a limitation in the light of Article 34 leads to quite different results; limiting the working hours in fact means limiting production and indirectly the flow of exports of the goods produced (at least bakery products intended to be consumed while fresh, that is to say within a few hours of their leaving the oven). In view of the foregoing, the simplest solution to the problem concerning the interpretation of Article 34 might seem to be to confirm the precedent set by the Groenveld judgment; indeed, in this case too the discussion is concerned with measures limiting production which have restrictive effects both on domestic trade and on the export trade and which affect the latter to a limited degree (the fact should be borne in mind that the nature of the product is such that it can only be sold abroad from the areas near the frontier). I do not, however, advise the Court to adopt that solution because, for one thing, it would lead to a first extension of the criteria on which the Groenveld judgment is based; that is to say, it would also be necessary to regard the restrictive measure concerning the permitted times for the transport and delivery of goods produced in German bakeries as falling outside the scope of Article 34. A further and more serious extension of those criteria would take place if in addition it were decided that the limitation of permitted times for the transport and delivery of goods produced by foreign bakeries and imported into Germany also falls outside the prohibition of measures having an effect equivalent to quantitative restrictions; this brings us into the field of Article 30 and the precedent created by the Groenveld judgment cannot be properly invoked. I therefore feel that a different path should be followed, one which the Court has been suggesting for a long time. The starting point must be recognition that the limitation of production caused by the prohibition of nightwork in bakeries may be seen objectively to have an effect equivalent to a quantitative restriction on exports. But at the same time it should be recognized that the limitation is justified both on the basis of Article 36, because it protects people's health, and because it is conducive to the objective, which is in the general interest, of improving working conditions. In view of the importance of these two aims within the Community system I think it is possible also to regard as justified the limitations of permitted times laid down in the same enactment for the transport and delivery of the products in question, in so far as such limitations are necessary to ensure observance of the prohibition of nightwork. These statements must be clarified. It is quite clear that shorter working hours give rise to a lower level of production; as regards the relationship between measures restricting production and the restrictive effect on exports, that is apparent from the interpretation repeatedly given by the Court of the concept of measures having an effect equivalent to quantitative restrictions on trade (without the addition, of course, of the discriminatory element, which is not required by Article 34). It is hardly necessary to add that, in this case, the creation of obstacles to exports has been fully illustrated by the order seeking a preliminary ruling. How can the prohibition of nightwork in bakeries be justified? In the case of the Federal Republic of Germany it may be ascertained from the records that the prohibition was imposed essentially to protect the health of workers employed in small and medium-scale bakery and confectionery undertakings which do not have enough employees for a system using three separate shifts and would therefore be obliged to use for the nightwork some of the staff who had already worked during the day or, at least, would be unable to ensure for their employees proper alternation between the periods of nightwork and daywork. The extension of the same prohibitions to the large producers, despite the fact that they might be able to organize their activities on the basis of separate shifts, with the appropriate rotation of personnel, seems to be based (according to the observations of the Bundesverfassungsgericht [Federal Constitutional Court]) on the need to avoid creating any discrimination, which would in any case be harmful from the economic point of view, between large and small or medium-scale undertakings. Furthermore, in general terms, the connection between the prohibition of night-work in bakeries and the protection of the health and welfare of workers is convincingly demonstrated by the existence of a multilateral convention drafted by the International Labour Organization in 1925 which relates to nightwork in bakeries and prohibits the manufacture during the night of bread, pastries and similar flour-based products (Article 1 (1) and (2)). The Convention entered into force on 26 May 1928 and the parties to it include two Member States, Ireland and Luxembourg. Furthermore, two other Member States — France and Italy — have incorporated in their legislation the prohibition on nightwork in bakeries, although it is mitigated by specific exceptions. It seems to me therefore that underlying that prohibition is an objective and widely-felt need to protect workers, regardless of the size of the undertaking. Having regard to all the foregoing, I am of the opinion that Article 36 must be applied to the question under discussion, in so far as it declares that “prohibitions or restrictions on imports, exports or goods in transit justified on grounds of ... the protection of health and life of humans” shall not be precluded. This does not, however, mean that it is inappropriate also to have recourse to the test adopted in decisions of Court, to the effect that obstacles to trade may be justified if they serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods (judgment of 20 February 1979, Rewe, cited above). In this case, the purpose in the general interest is the concern “to promote improved working conditions and an improved standard of living for workers”, which is formally recognized in the first paragraph of Article 117 of the EEC Treaty.