CJEC, December 16, 1992, No C-169/91

THE COURT,

1 By order of 20 May 1991, which was received at the Court on 1 July 1991, the House of Lords referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions on the interpretation of Article 30 of the Treaty.

2 The questions were raised in two sets of proceedings brought by the Council of the City of Stoke-on-Trent and Norwich City Council against B & Q plc ("B & Q").

3 In those proceedings, the two prosecuting authorities accuse B & Q of contravening sections 47 and 59 of the Shops Act 1950 by opening their shops on Sundays for commercial transactions other than those listed in the Fifth Schedule to that Act.

4 The Fifth Schedule to the Shops Act 1950 contains a list of items which, by way of exception, may be sold in shops on Sundays. They include, in particular, intoxicating liquors, certain foodstuffs, tobacco, newspapers, and other products of everyday consumption.

5 In the proceedings before the House of Lords, before which the cases are pending at last instance, it became apparent that the parties differed as to the interpretation to be given to the Court' s judgments in, on the one hand, Case C-145-88 Torfaen Borough Council v B & Q [1989] ECR 3851 and, on the other, Case C-312-89 Union Départementale des Syndicats CGT de l' Aisne v Conforama [1991] ECR I-997 and Case 332-89 Marchandise [1991] ECR I-1027.

6 In view of the dispute as to the proper interpretation of the abovementioned judgments, the House of Lords stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

1. Is the effect of the Court of Justice' s rulings in Case C-312-89 Conforama and C-332-89 Marchandise to determine that the prohibition contained in Article 30 of the EEC Treaty does not apply to national rules, such as those in issue in Case 145-88 Torfaen Borough Council v B & Q plc, which prohibit retailers from opening their premises on Sunday for the serving of customers with certain goods?

2. If not, is it nevertheless immediately apparent, whether or not evidence is adduced, that the restrictive effects on intra-Community trade which may result from national rules such as those in Question 1 above do not exceed "the effects intrinsic to rules of that kind", as that phrase is used in the ruling of the Court of Justice in Case 145-88?

3. If not, on what criteria and by reference to what, if any, factual or other evidence must the national court determine the question whether or not the restrictive effects on intra-Community trade which may result from national rules such as those in Question 1 above exceed "the effects intrinsic to rules of that kind" within the meaning of that phrase as used in the ruling of the Court of Justice in Case 145-88?

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the cases pending before the national court, the relevant legislation, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first question

8 The national court' s first question seeks to determine whether it follows from the Court' s judgments in Conforama and Marchandise that the prohibition laid down in Article 30 of the Treaty does not apply to national legislation such as that in question. That same legislation was also the subject of the Court' s judgment in the Torfaen Borough Council case, cited above.

9 In those three judgments the Court found that the various bodies of national legislation concerning the closing of shops on Sundays were not intended to regulate the flow of goods.

10 It is also apparent from those judgments that such legislation may indeed have adverse repercussions on the volume of sales of certain shops, but that it affects the sale of both domestic and imported products. The marketing of products from other Member States is not therefore made more difficult than the marketing of national products.

11 Furthermore, in the abovementioned judgments the Court recognized that the legislation at issue pursued an aim which was justified under Community law. National rules restricting the opening of shops on Sundays reflected certain choices relating to particular national or regional socio-cultural characteristics. It was for the Member States to make those choices in compliance with the requirements of Community law, in particular the principle of proportionality.

12 As far as that principle is concerned, the Court stated in its judgment in the Torfaen Borough Council case that such rules were not prohibited by Article 30 of the Treaty where the restrictive effects on Community trade which might result from them did not exceed the effects intrinsic to such rules and that the question whether the effects of those rules actually remained within that limit was a question of fact to be determined by the national court.

13 In its judgments in the Conforama and Marchandise cases, however, the Court found it necessary to make clear, with regard to similar rules, that the restrictive effects on trade which might result from them did not appear to be excessive in relation to the aim pursued.

14 The Court considered that it had all the information necessary for it to rule on the question of the proportionality of such rules and that it had to do so in order to enable national courts to assess their compatibility with Community law in a uniform manner since such an assessment cannot be allowed to vary according to the findings of fact made by individual courts in particular cases.

15 Appraising the proportionality of national rules which pursue a legitimate aim under Community law involves weighing the national interest in attaining that aim against the Community interest in ensuring the free movement of goods. In that regard, in order to verify that the restrictive effects on intra-Community trade of the rules at issue do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct, indirect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing of national products.

16 It was on the basis of those considerations that in its judgments in the Conforama and Marchandise cases the Court ruled that the restrictive effects on trade of national rules prohibiting the employment of workers on Sundays in certain retailing activities were not excessive in relation to the aim pursued. For the same reasons, the Court must make the same finding with regard to national rules prohibiting shops from opening on Sundays.

17 It must therefore be stated in reply to the first question that Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays.

The second and third questions

18 In view of the answer given to the first question, it is unnecessary to give a ruling on the second and third questions.

Costs

19 The costs incurred by the United Kingdom 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,

in answer to the questions referred to it by the House of Lords by order of 20 May 1991, hereby rules:

Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays.