Opinion of Mr Advocate General Van Gerven delivered on 23 March 1994. - Punto Casa SpA v Sindaco del Comune di Capena et Comune di Capena and Promozioni Polivalenti Venete Soc. coop. arl (PPV) v Sindaco del Comune di Torri di Quartesolo and Comune di Torri di Quartesolo. - References for a preliminary ruling: Pretura circondariale di Roma - Italy. - Interpretation of Articles 30 and 36 of the Treaty - Prohibition on certain kinds of Sunday trading. - Joined cases C-69/93 and C-258/93.



European Court reports 1994 Page I-02355



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. These joined cases are concerned with two references from the Pretura Circondariale di Roma, Castelnuovo di Porto Division, for a preliminary ruling on the compatibility of Italian Law No 558 of 28 July 1971 (1) with Articles 30 to 36 of the EC Treaty.

The Italian rules on the closure of shops

2. Law No 558 regulates business opening times. Article 1(2)(a) of that Law provides for compulsory closure on Sundays and public holidays. Article 2 extends that prohibition to "neighbourhood markets, street trading from habitual premises and, in general, any trading from fixed premises or by itinerant traders".

Article 10 of that Law provides for administrative penalties in the event of breach of the statutory provisions. Repeated infringement, moreover, can lead to compulsory closure of a business for up to 15 days.

3. Law No 558 provides for derogations ratione materiae, ratione loci and ratione temporis. Ratione materiae, shops which sell monopoly goods, newsagents and motorway petrol stations are not covered by the prohibition laid down by law, whilst restaurants and patisseries may be exempted. (2) Flowers may be sold in the morning on Sundays and on public holidays that occur during the week, (3) while bakeries may also open in the morning on those public holidays. (4)

Ratione loci, on Sundays and public holidays markets may be organized and businesses may open in municipalities "in which street trading from habitual premises is traditional" (5) and in areas with a tourist-based economy (though only during the "tourist season"). (6) Shops in camping sites, holiday villages and tourist complexes, and in railway stations, harbours and airports are also exempted from the statutory prohibition. (7)

Ratione temporis, the regional authorities may derogate from the rules on closure in the case of consecutive public holidays, (8) during the Christmas period or on merely local holidays. (9)

4. Law No 558 is a framework law which leaves the implementation of the above principles to the authorities of individual regions. Detailed provisions concerning business opening times are laid down in regional laws or decisions, such as Laws No 58/1971 and No 37/1978 of the Lazio Region and Decision No 839 of 10 October 1983 of the Veneto Region, which are at issue in this case. It is for the mayors of the municipalities in which the shops are located to penalize infringements of the rules laid down.

Facts and questions submitted for a preliminary ruling

5. Punto Casa SpA owns a supermarket in Capena in which it employs approximately 100 staff. The supermarket is closed on Mondays, but open on Sundays and public holidays. It is clear from the order for reference that Sunday sales constitute approximately one-half of turnover. On several occasions, the mayor of Capena has ordered the supermarket to close on account of repeated infringements of the prohibition on Sunday trading, as laid down by Law No 558 and Regional Laws Nos 58/1971 and 37/1978 of the Lazio Region.

Promozioni Polivalenti Venete Soc. coop. arl (hereinafter "PPV") operates a shopping centre - which, in view of its dimensions, is claimed to be the largest of its kind in Italy - in Torri di Quartesolo (some 6 kilometres from Vicenza), in an area whose economy is based on tourism. Approximately 100 retail outlets are located within that shopping centre. Notwithstanding the fact that practically all those shops are closed on Sundays, attendance on that day is, according to the Pretura, approximately one-quarter of the total numbers recorded in the other six days of the week together. By letter of 10 March 1993 to the mayor of Torri di Quartesolo, PPV "claimed that it was entitled" to open on Sundays and public holidays. In reply to that letter, the mayor threatened to impose the penalties provided for in Law No 558 and in Decision No 839 of the Veneto Region.

6. Both Punto Casa and PPV requested the Pretura to order the municipal authorities of Capena and Torri di Quartesolo, by way of an interim measure, to set aside provisionally the statutory provisions relating to compulsory closure on Sundays and public holidays. In that connection the Pretura Circondariale di Roma referred the follow questions to the Court for a preliminary ruling:

"1. Does a provision of national law which (save for certain products) requires retail shops to close on Sundays, but does not prohibit Sunday working, and imposes the penalty of forced closure on shops in breach of that requirement, thus significantly reducing the sales of such shops, including sales of goods produced in other Member States of the Community, with a consequent reduction in the volume of imports from such States, constitute:

(a) a measure having an effect equivalent to a restriction on imports within the meaning of Article 30 of the Treaty of Rome and subsequent rules of Community law adopted in pursuance of the principles laid down therein; or

(b) a means of arbitrary discrimination or a disguised restriction on trade between Member States; or

(c) a measure which is disproportionate and inappropriate to the aim pursued by the provision of national law;

given that:

- large-scale distributors and organized distribution centres (the category to which the applicant belongs) on average sell a greater quantity of products imported from other Member States than that sold by small and medium-sized traders;

- the turnover achieved by large-scale distributors and organized distribution centres on Sundays cannot be compensated for by substitute purchases by customers on other days of the week, such purchases being made within a commercial network which in general obtains its supplies from domestic producers?

2. If the answer to Question 1 is in the affirmative, does the national measure in question fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or other derogations provided for by Community law?"

Answer to the questions

7. The first question is concerned with the compatibility of national legislation on the closure of shops, such as the Italian legislation, with Article 30 of the EC Treaty. Clearly swayed by the arguments put forward by Punto Casa and PPV, the Pretura suggests in its questions and in the grounds of the order for reference that the Italian legislation (a) may lead to a fall in imports of products from other Member States and (b) is not based on social grounds since it does not prohibit working on Sundays and public holidays. In addition, it emphasizes that the legislation in question (c) affects large stores more severely than other categories of traders.

8. I have already dealt with all the arguments put forward in the present case in my Opinion of 16 March 1994 in Joined Cases C-401/92 (Tankstation 't Heukske V.O.F.) and C-402/92 (J.B.E. Boermans). Those cases were also concerned with national legislation regulating business hours which was alleged to have an adverse effect on imports of products from other Member States. There too, it was argued that the national legislation in question could not be justified on social grounds (because it did not prohibit working but only the sale of certain products) and that it affected some traders more severely than others.

In my Opinion of 16 March 1994, in which I referred to the judgment of 24 November 1993 in Keck and Mithouard (10) and of 15 December 1993 in Huenermund, (11) I explained why I consider that Article 30 of the EC Treaty is inapplicable to national legislation on the closure of shops which, like the legislation at issue in this case, applies in the same manner to all traders (including those from other Member States) carrying on business within the national territory, which in law and, viewed as a whole, in fact has the same impact on the marketing of domestic products and those from other Member States and which, still viewed as a whole, does not hinder intra-Community trade in any other way. I would refer in particular to paragraphs 18 to 29 of that Opinion.

9. By way of reply to the three aforesaid concerns (paragraph 7, above) specifically referred to by the Pretura, I would lay emphasis once again on the following points in my Opinion of 16 March 1994. First of all, it is apparent from the judgment in Keck and Mithouard that the fact that national legislation may restrict the volume of sales of products from other Member States is not sufficient to characterize it as a measure having equivalent effect to a quantitative restriction on imports. (12)

Furthermore, in the event of the inapplicability of Article 30 of the EC Treaty to national legislation, it is unnecessary to consider whether such legislation is justified by an overriding requirement. (13) Accordingly, the question whether the Italian legislation on the closure of shops pursues legitimate objectives of social protection may be disregarded here, like the whole of the second question which is also concerned with that point.

Finally, it cannot be inferred from the mere fact that national legislation on the closure of shops does not apply in the same manner to all traders that such legislation is contrary to the Keck and Mithouard judgment in which the Court laid down the conditions for Article 30 of the EC Treaty to be inapplicable. Those conditions are that the national legislation in question may not hinder access for traders from other Member States to the market of the Member State which adopted the legislation any more than it hinders access for traders from that particular Member State, (14) that according to its aim and its wording the legislation must apply in the same manner to domestic and imported products and that, viewed as a whole, also as regards its effects, it may not lead to unequal treatment of domestic and imported products as regards access to the market. (15)

It is not apparent from any of the documents before the Court (or from the report of the Autorità Garante della Concorrenza e del Mercato, which Punto Casa and PPV have annexed to their written observations) that legislation on the closure of shops, such as that under consideration, does not fulfil those conditions or that, viewed as a whole, it hinders intra-Community trade in any other way.

Conclusion

10. In conclusion, I propose that the Court answer the questions submitted by the Pretura Circondariale di Roma as follows:

Article 30 of the EC Treaty must be interpreted as not appying to national legislation on the closure of shops which, like the legislation at issue in this case, applies in the same manner to all traders (including those from other Member States) carrying on business within the national territory, which in law and, viewed as a whole, in fact has the same impact on the marketing of domestic products and those from other Member States and which, still viewed as a whole, does not hinder access to the market for imported products in any other way.

(*) Original language: Dutch.

(1) - Published in the Official Journal of the Italian Republic No 200 of 9 August 1971.

(2) - Article 6(1) and (2) of Law No 558.

(3) - Article 6(3).

(4) - Article 1(2)(a).

(5) - Artice 2(1) and (3).

(6) - Article 3.

(7) - Article 6(1).

(8) - In particular, they may decide that groceries may open in the morning on the public holiday which is best suited for that purpose (see Article 1(2)(d)).

(9) - Article 4.

(10) - Joined Cases C-267/91 and C-268/91 [1993] ECR .

(11) - Case C-292/92 [1993] ECR .

(12) - See the judgment in Keck and Mithouard, at paragraph 13, and the Opinion of 16 March 1994, paragraph 22.

(13) - Opinion of 16 March 1994, paragraph 26.

(14) - Opinion of 16 March 1994, paragraph 21.

(15) - Opinion of 16 March 1994, paragraph 23.