CJEC, July 14, 1981, No 155-80

The court

1 By an order of 22 april 1980, which was received at the court on 2 july 1980, the amtsgericht (local court) wiesbaden referred to the court under article 177 of the eec treaty two questions for a preliminary ruling concerning the interpretation of articles 7, 30 and 34 of the treaty, in order to determine the conformity with community law of national rules on nightwork in bakeries.

2 These questions were raised in the course of a prosecution for a contravention of article 5 of the german law on working hours in bakeries (gesetz uber die arbeitszeit in backereien und konditoreien), as amended on 23 july 1969.

3 Article 5 (1) of the above-mentioned law provides in substance that on working days, subject to certain exceptions, no person shall be permitted to work on the making of ordinary or fine baker ' s wares at night between the hours of 10 p.m. And 4 a.m. Article 5 (5) prohibits the transport of ordinary or fine baker ' s wares for delivery to consumers or retail outlets between the hours of 10 p.m. And 5.45 a.m. According to the german government, that prohibition does not affect transport and delivery to wholesalers, intermediaries such as bread salesmen, distributors of ordinary and fine baker ' s wares or to warehouses belonging to the undertaking.

4 According to the observations of the parties to the case, and in particular those of the german government, the legislation in issue is designed mainly to protect workers in small and medium-sized bakeries, which do not have enough staff to be able to arrange work in shifts, against permanent night-work likely to damage their health. The purpose of extending the prohibition to the large undertakings in the industry which are able to organize work in shifts is to protect the small family businesses against commercial competition.

5 Believing that this legislation might be incompatible with community law inasmuch as it prevents the delivery in time of fresh ordinary and fine baker ' s wares to the member states bordering the federal republic of germany and so creates distortion in competition within the community, the amtsgericht wiesbaden submitted the following questions:

' ' 1. Must article 7 of the eec treaty be interpreted as meaning that there is a breach of the prohibition on discrimination if by means of a statutory provision a member state of the community creates a situation which considerably impairs the competitiveness of its own nationals in relation to comparable nationals of other member states?

2. Must articles 30 and 34 of the eec treaty be interpreted as meaning that the effects of article 5 of the gesetz uber die arbeitszeit in backereien (law on working hours in bakeries) in regard to the export and import of fresh baker ' s wares are to be regarded as measures equivalent to quantitative restrictions on imports or quantitative restrictions on exports?

' '

First question

6 It is clear from the grounds set out in the order making the reference that the purpose of the first question is to ascertain whether rules of one member state which, in certain areas bordering other member states in which there are no such rules, lead to distortion of competition to the detriment of traders established in the territory of the first state, are to be considered as discriminatory under article 7 of the treaty.

7 As the court has repeatedly stated, most recently in its judgment of 30 november 1978 (case 31-78 bussone (1978) ecr 2429, at p. 2446), the principle of non-discrimination contained in article 7 is not infringed by rules which are applicable not on the basis of the nationality of traders, but on the basis of their location.

8 It follows that national rules which make no distinction, directly or indirectly, on the ground of the nationality of those subject to such rules, do not infringe article 7, even if they affect the competitiveness of the traders covered by them.

9 Furthermore, as the court stated in its judgment of 3 july 1979 (joined cases 185 to 204-78 van dam (1979) ecr 2345, at p. 2361), it cannot be held contrary to the principle of non-discrimination to apply national legis- lation merely because other member states allegedly apply less strict rules.

10 The answer to the first question must therefore be that article 7 of the eec treaty must be construed as prohibiting only discrimination on the ground of the nationality of traders. There is, therefore, no infringement of article 7 even if by means of a statutory provision which makes no distinction directly or indirectly on grounds of nationality, a member state creates a situation affecting the competitiveness of traders established on its territory compared with traders established in other member states.

Second question

11 By the second question the national court asks whether the effects of domestic legislation on working hours in bakeries, such as the german law in issue, in regard to the export and import of fresh baker ' s wares are to be regarded as measures having an effect equivalent to quantitative restrictions on imports or exports within the meaning of articles 30 and 34 of the treaty.

The restriction on production

12 It cannot be disputed that the prohibition in the bread and confectionery industry on working before 4 a.m. In itself constitutes a legitimate element of economic and social policy, consistent with the objectives of public interest pursued by the treaty. Indeed, this prohibition is designed to improve working conditions in a manifestly sensitive industry, in which the production process exhibits particular characteristics resulting from both the nature of the product and the habits of consumers.

13 For these reasons, several member states of the community as well as a number of non-member states have introduced similar rules concerning nightwork in this industry. In this regard it is appropriate to mention convention n°20 of the international labour organization of 8 june 1925 concerning nightwork in bakeries which, subject to certain exceptions, prohibits the production of bread, pastries or similar products during the night.

14 The accused maintains that the prohibition on the production of ordinary and fine baker ' s wares before 4 a.m. Constitutes an export barrier prohibited by article 34 of the treaty. This is alleged to be the case particularly with regard to products which have to be delivered fresh in time for breakfast and which must therefore be produced during the night before the day on which they are offered for sale.

15 However, as the court has already declared in its judgment of 8 november 1979 (case 15-79 groenveld (1979) ecr 3409), article 34 concerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a member state and its export trade, in such a way as to provide a particular advantage for national production or for the domestic market of the state in question.

16 This is clearly not the case with rules such as those in issue, which are part of economic and social policy and apply by virtue of objective criteria to all the undertakings in a particular industry which are established within the national territory, without leading to any difference in treatment whatsoever on the ground of the nationality of traders and without distinguishing between the domestic trade of the state in question and the export trade.

The restrictions on transport and delivery

17 The accused also challenges the prohibition, included in the rules on nightwork at issue before the national court, on the transport and delivery of ordinary and fine baker ' s wares to consumers or retail shops before 5.45 a.m. He submits that this prohibition constitutes a measure having an effect equivalent to restrictions on both imports and exports, because, on the one hand, it prevents producers established in other member states from delivering their wares in time to consumers and retail shops in the federal republic of germany, whilst, on the other hand, producers established in the federal republic of germany are prevented from delivering in time to the other member states.

18 According to the german government, the sole purpose of the prohibition on transport and delivery before 5.45 a.m. Is to ensure compliance with the prohibition on production at night, which might otherwise escape effective control on the part of the authorities. It is alleged to be essential to extend the prohibition to cover products coming from other member states because otherwise producers established in germany would be at a disadvantage in relation to competition from abroad, which would be contrary to the prin ciple of equality. Therefore, if products from other member states were to be exempt from such a prohibition, it would be impossible not only to maintain the prohibition for domestic products, but also to maintain the restrictions on production times.

19 In this regard, it must be noted that the restrictive effect of the rules controlling the times for the transport and delivery of ordinary and fine baker ' s wares, in connection with the control of the hours when those products may be manufactured, must be evaluated in the light of their scope.

20 If such rules are confined to transport for delivery to individual consumers and retail outlets only, without affecting transport and delivery to warehouses or intermediaries, they cannot have the effect of restricting imports or exports between member states. In this case, indeed, trade within the community remains possible at all times, subject to the single exception that delivery to consumers and retailers is restricted to the same extent for all producers, wherever they are established. Under these circumstances, such rules are not contrary to articles 30 and 34 of the treaty.

21 The reply to the second question must therefore be that articles 30 and 34 of the eec treaty do not apply to national rules which prohibit the production of ordinary and fine baker ' s wares and also their transport and delivery to individual consumers and retail outlets during the night up to a certain hour.

22 The costs incurred by the german government, the french government and the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the prosecution pending before the national court, costs are a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the amtsgericht wiesbaden by order of 22 april 1980, hereby rules:

1. Article 7 of the eec treaty must be construed as prohibiting only discrimination on the ground of the nationality of traders. There is, therefore, no infringement of article 7, even if, by means of a statutory provision which makes no distinction directly or indirectly on grounds of nationality, a member state creates a situation affecting the competitiveness of traders established on its territory compared with traders established in other member states.

2. Articles 30 and 34 of the eec treaty do not apply to national rules which prohibit the production of ordinary and fine baker ' s wares and also their transport and delivery to individual consumers and retail outlets during the night up to a certain hour.