CJEC, 6th chamber, June 2, 1994, No C-401/92

THE COURT (Sixth Chamber)

1 By judgments of 12 November 1992, received at the Court on 27 November 1992, the Gerechtshof, 's Hertogenbosch (Chamber for Economic Affairs) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty several questions on the interpretation of Articles 30 to 36 and Article 86, in conjunction with Articles 3(f) and 5 of the Treaty, to enable it to assess the compatibility with those provisions of the Netherlands rules relating to the closing of petrol stations.

2 Those questions were raised in criminal proceedings before the Gerechtshof against Tankstation 't Heukske and J.B.E. Boermans concerning compliance with the provisions relating to the closing of shops.

3 Article 3 of the Winkelsluitingswet (Law on shop closing) 1976 lays down a maximum number of opening hours and periods of compulsory closure. Under Article 11 of that law a derogation from that compulsory closure may be granted by way of decree. Effect was given to that possibility by a Decree of 6 December 1977 specifying the sales outlets whose opening is authorized outside general closing hours. Article 3 of that decree provides a derogation for the benefit of petrol stations, subject to certain conditions.

4 The last-mentioned provision was amended by a Decree of 13 December 1988 which provides that the prohibitions laid down by the Law on shop closing do not apply to a shop in a petrol station which is situated outside a built-up area at the side of a motorway, when the only goods offered for sale in that shop are fuel and lubricants for vehicles or boats, articles for use in or the cleaning or urgent repair of vehicles or boats and their accessories, articles for personal hygiene, snacks, ice creams, non-alcoholic beverages, tobacco, smoking accessories in so far as they are normally consumed on journeys.

5 Under those provisions petrol stations situated at the side of motorways outside built-up areas and the shops associated with those stations may open day and night and offer certain articles linked to journeys, such as petrol and smoking accessories. On the other hand, the general rules continue to apply to articles not required on journeys, that is to say that those articles can only be sold during lawful opening hours, which must be indicated at each public entrance to the shops. Outside lawful opening hours, articles not linked to journeys are to be kept in a locked cupboard.

6 Article 3(2) of the Decree of 6 December 1977, also amended by the Decree of 13 December 1988, provides a similar derogation for all other petrol stations on condition that outside normal opening hours tobacco and smoking accessories are sold only by means of vending machines.

7 Criminal proceedings were instituted on the ground that, contrary to applicable national law, two shops forming part of the petrol stations of 't Heukske and Mr Boermans were open to the public without the prescribed legal notice indicating opening hours having been affixed to every entrance to those shops. Furthermore, the competent authority found that a number of articles not linked to road travel were offered for sale and had not been placed in lockable cupboards. Moreover, in one of the two shops it was found that tobacco products were not sold by vending machine.

8 't Heuske and Mr Boermans were convicted by judgments of the Economic Magistrate at Roermond on 6 November 1991 and at Maastricht on 9 March 1992 respectively. They appealed against those convictions to the Gerechtshof and, in the appeal proceedings, claimed in particular that the national legislation concerning the closure of shops was contrary to Community law. The Gerechtshof therefore decided to request the Court of Justice to give a preliminary ruling on the following questions:

"(1) Do the provisions of the EEC Treaty, including Articles 30 to 36, or Article 86 in conjunction with Article 3(f) and Article 5, militate against rules, in themselves lawful, on the compulsory closing of shops as laid down in the Winkelsluitingswet 1976 and serving as the basis for implementing measures as laid down in the (amended) implementing decree of 6 December 1977 under which operators of inter alia petrol stations, shops in station buildings and at airports, shops in hospitals and museums are or continue to be permitted to offer for sale and to sell smoking accessories, beverages, newspapers, music cassettes and foodstuffs whereas others, including specialized shops, are considerably more restricted in their opening possibilities?

(2) Must the abovementioned provisions or any other provisions of the EEC Treaty be interpreted as precluding the criminal conviction of operators of petrol stations at the side of the public highway on the basis of the Winkelsluitingswet and the abovementioned implementing decree in so far as those provisions lay down rules for shops in petrol stations which:

(a) in themselves do not affect the opening hours of petrol stations and relate merely to the conditions under which and the times at which certain goods may be offered for sale at those petrol stations;

(b) make a distinction between petrol stations at the side of Rijkswegen (national highways) and petrol stations at the side of other public highways in so far as the former enjoy more freedom to offer for sale tobacco and tobacco products than the latter?

(3) Is it relevant to the answer to Question (2)(a) and (2)(b) whether as between the two categories of petrol station distinguished in Question (2)(b) there exists a difference between the proportion of normal revenue yielded by motor fuels and by other products in so far as the first category is (substantially) less dependent for its revenue on sales of products other than motor fuels than the second category?

(4) Is it relevant to the answer to Question (2)(a) and (b) and Question (3) that by governmental rules, possibly with the involvement of a committee of representatives of petroleum companies, licences for petrol stations at the side of Rijkswegen were granted in such a way that priority was thereby given to petroleum companies having a relatively large share of the market?"

9 In substance, the national court asks whether Article 30 of the Treaty precludes rules which provide for the compulsory closing of shops, and whether Article 86, in conjunction with Articles 3(f) and 5 of the Treaty, precludes such rules which distinguish between different categories of traders in connection with national provisions concerning the grant of licences for the petrol stations.

Article 30 of the Treaty

10 Under Article 30 of the Treaty quantitative restrictions on imports and all measures having equivalent effect are prohibited between the Member States.

11 The Court has consistently held that all measures which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade constitute measures having an effect equivalent to quantitative restrictions (judgment in Case 8-74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).

12 However, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder, directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, cited above, provided that those provisions apply to all relevant traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Where those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside the scope of Article 30 of the Treaty (see the judgment in Joined Cases C-267-91 and C-268-91 Keck and Mithouard [1993] ECR I-6097, paragraphs 16 and 17).

13 The conditions laid down in the judgment last cited are fulfilled in the case of rules such as those at issue in the main proceedings.

14 The rules in question relate to the times and places at which the goods in question may be sold to consumers. However, they apply to all relevant traders without distinguishing between the origin of the products in question and do not affect the marketing of products from other Member States in a manner different from that in which they affect domestic products.

15 Consequently, the reply to be given to the Gerechtshof is that Article 30 of the Treaty is to be interpreted as not applying to national rules concerning the closing of shops which apply to all traders operating within the national territory and which affect in the same manner, in law and in fact, the marketing of domestic products and of products from other Member States.

Article 86 in conjunction with Articles 3(f) and 5 of the Treaty

16 Articles 85 and 86 of the Treaty per se are concerned only with the conduct of undertakings and not with national legislation of Member States. The Court has consistently held, however, that Articles 85 and 86, in conjunction with Article 5 of the Treaty, 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 rules of the character of State legislation by delegating to private traders responsibility for taking decisions affecting the economic sphere (see the judgment in Case 267-86 Van Eycke v ASPA [1988] ECR 4769, paragraph 16, and, most recently, the judgment in Case C-332-89 Marchandise and Others [1991] ECR I-1027, paragraph 22).

17 In the present case there is nothing before the Court to support the conclusion that the rules at issue seek to reinforce the effects of pre-existing agreements, decisions or concerted practices. Moreover, no aspect of those rules is liable to deprive them of the character of State legislation.

18 Accordingly, the reply to be given to the Gerechtshof, 's Hertogenbosch, is that the provisions of Articles 85 and 86, in conjunction with Articles 3(f) and 5, of the Treaty do not apply to such rules.

Costs

19 The costs incurred by the German, Netherlands and United Kingdom Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Gerechtshof 's Hertogenbosch (Chamber for Economic Affairs) by its judgments of 12 November 1992, hereby rules:

1. Article 30 of the Treaty is to be interpreted as not applying to national rules concerning the closing of shops which apply to all traders operating within the national territory and which affect in the same manner, in law and in fact, the marketing of domestic products and of products from other Member States.

2. The provisions of Articles 85 and 86 of the Treaty, in conjunction with Articles 3(f) and 5 of the Treaty, do not apply to such rules.