CJEC, 6th chamber, June 2, 1994, No C-69/93

THE COURT (Sixth Chamber)

1 By orders of 16 December 1992 and 22 March 1993, received at the Court on 15 March and 27 April respectively, the Pretura Circondariale di Roma (Rome District Magistrates Court), Sezione Distaccata di Castelnuovo di Porto (Castelnuovo di Porto Division), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 30 and 36 of the Treaty, in order to enable it to assess, in the light of those provisions, the Italian legislation on the closure of retail outlets on Sundays.

2 Those questions were raised in connection with action taken by the authorities against the operators of two supermarkets for infringing that legislation.

3 Italian Law No 558 of 28 July 1971 regulates business opening hours and sale by retail. Article 1(2)(a) of that Law provides for total closure of shops on Sundays and public holidays, other than in the exceptional cases provided for by that Law.

4 Article 10 of the Law provides for administrative penalties to be imposed in the event of infringement. Specific provisions concerning opening times are laid down by the regional authorities. Supervision to ensure compliance with the rules in force is entrusted to the mayors of the municipalities concerned, who may impose penalties.

5 One of the plaintiffs in the main proceedings operates a supermarket located within the Municipality of Capena, the other operates a shopping centre situated within the Municipality of Torri di Quartesolo. Since both the supermarket and the shopping centre were frequently open on Sundays and public holidays, the mayors of the two municipalities in question imposed administrative penalties on the operators concerned.

6 The plaintiffs in the main proceedings thereupon appealed to the competent court, claiming that a substantial part of the turnover achieved related to products from other Member States of the Community. In their view, the national provisions at issue were therefore incompatible with Article 30 of the Treaty.

7 In those circumstances the Pretura Circondariale di Roma, Sezione Distaccata di Castelnuovo di Porto, stayed the proceedings and referred to the Court, in Case

C-69-93, the following questions 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 on 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) or a measure which is disproportionate and inappropriate to the aim pursued by the provision of national law;

given that:

- large stores on average sell a greater quantity of products imported from other Member States than that sold by small and medium-sized businesses;

- the turnover achieved by large stores 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 obtain 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?"

8 The questions submitted to the Court in Case C-258-93 are in substance identical to those set out above.

Question 1

9 The first question seeks to ascertain whether national legislation of the kind at issue in the main proceedings falls within the scope of Article 30 of the Treaty.

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

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

12 The Court has also held that 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 and C-268-91 Keck and Mithouard [1993] ECR I-6097, paragraphs 16 and 17).

13 In the case of legislation of the kind at issue, which is concerned with the arrangements whereby goods may be sold to consumers, the conditions set out in that judgment are fulfilled.

14 The legislation at issue applies, irrespective of the origin of the products in question, to all the traders concerned and does not affect the marketing of products from other Member States any differently from the marketing of domestic products.

15 Accordingly, the answer to the national court must be that Article 30 of the Treaty is to be interpreted as not applying to national legislation on the closure of shops which applies to all traders operating within the national territory and which affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

Question 2

16 In view of the answer to the first question, there is no need to answer the second question.

Costs

17 The costs incurred by the Greek Government and the United Kingdom and by 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 Pretura Circondariale di Roma, Sezione Distaccata di Castelnuovo di Porto, by orders of 16 December 1992 and 22 March 1993, hereby rules:

Article 30 of the EEC Treaty is to be interpreted as not applying to national legislation on the closure of shops which applies to all traders operating within the national territory and which affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.