WRITTEN QUESTION E-1891/96 by Klaus-Heiner Lehne (PPE) to the Commission (11 July 1996)

Subject: National shop closing times versus liberalization in the European Union

In the Commission's view, are the individual Member State laws on shop closing times and opening hours compatible with the rules on competition and liberalization laid down in the European Treaties?

Are the provisions of the above laws compatible with the rules on the freedom to provide services under Article 59 ff.?

Does the reduction in the legally permitted shop opening hours envisaged under the relevant amendment to the law in the Federal Republic of Germany, where shops are to close at 4 p.m. rather than at 6 p.m. on Saturday afternoon, contravene the ban on new restrictions laid down by Article 62 of the EC Treaty?

Does the Commission take the view that consideration should be given to harmonizing the law on shop closing times at European level?

Answer given by Mr Monti on behalf of the Commission (9 October 1996)

On several occasions, the Court of Justice has been called on to give a preliminary ruling in the matter of national regulations on shop-opening hours, including bans on Sunday trading. ((Ruling of 16.12.1992 in Case C-169/91 B& Q; ruling of 24.11.1993 in Cases C-267/91 and 268/91 Punto Casa and PVV; ruling of 20.6.1996 in Semeraro Casa Uno Srl; Cases C/418/93, C-419/93, C-420/93, C-421/93, C-460/93, C-461/93, C-462/93, C-464/93, C-9/94, C-10/94, C-11/94, C-14/94, C-15/94, C-23/94, C-24/94 and C-332/94. )) It confirmed that such national regulations were compatible with the provisions of the EC Treaty governing the free movement of goods and the right of establishment.

The Commission takes the view that examining this matter in the light of other provisions of the EC Treaty does not produce a different result. It is inconceivable that the introduction of regulations on shop-opening hours in a particular Member State could impede the provision of cross-border services given that Article 59 of the EC Treaty is applicable only where a trader does business in a Member State in which he is not established. Regulations on shop-opening hours would apply to any traders doing business in the territory of the Member State concerned. In addition, they are not designed to govern the conditions concerning the provision of cross-border services and, lastly, the restrictive effects they might have on the freedom to provide such services are too uncertain and too indirect for the obligation they impose to be regarded as being apt to impede the provision of cross-border services. Since such national regulations do not, in principle, infringe Article 59 of the EC Treaty, the same is also true of Article 62.

Articles 85 and 86 of the EC Treaty relate to the conduct of firms and not to the conduct of Member States (national legislation). Even so, the Court of Justice has consistently held that Article 85, taken in conjunction with Article 5 of the EC Treaty, requires Member States not to introduce or to maintain in force measures, even of a legislative or regulatory nature, that may render ineffective the competition rules applicable to firms. Such is the case in particular where a Member State requires or favours the adoption of agreements contrary to Article 85 or reinforces their effects. ((Judgement of 21 September 1988 in Case 267/86 Van Eycke and judgement of 17 November 1993 in Case C-2/91 Meng. )) It is unlikely that national regulations on shop-opening hours would fall into this category since any agreements between firms in the distributive sector resulting from such regulations could not conceivably affect trade between Member States. For, an agreement is caught by the Treaty's rules of competition only if it is likely to affect such trade significantly.

In spite of the disparity between national regulations on shop-opening hours, the Commission does not see any need for action to be taken at the moment. Leaving aside the possible expediency of a Community initiative, no such need can be justified on legal grounds. Any reduction in national regulations in respect of shops would not result in the removal of obstacles to intra-Community trade in goods and services.