CJEC, December 16, 1992, No C-304/90

THE COURT,

1 By order of 9 August 1990, which was received at the Court on 4 October 1990, the Reading and Sonning Magistrates' Court, United Kingdom, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Articles 30 and 36 of the Treaty.

2 The questions were raised in proceedings brought by Reading Borough Council against Payless DIY Limited, Wickes Building Supplies Limited, Great Mills (South) Limited, Homebase Limited and B & Q plc for infringing 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.

3 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.

4 Before the national court, the defendants in the main proceedings challenged the legality of the national legislation in relation to Article 30 of the Treaty, contending that the provisions of the Shops Act at issue did not satisfy the requirement of proportionality referred to in the Court' s judgment in Case C-145-88 Torfaen Borough Council v B & Q plc [1989] ECR 3851.

5 In view of those arguments the Reading and Sonning Magistrates' Court stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

1. Where the legislation of a Member State prohibits retail premises from opening on Sundays for the personal serving of customers with the objective of ensuring so far as possible that shopworkers do not have to work on Sundays, with a view to maintaining what many regard as the traditional English Sunday, is such an objective one that is justified with regard to Community law within the meaning of paragraphs 12 to 14 of the judgment in Case 145-88 Torfaen Borough Council v B & Q plc, 23 November 1989?

2. When applying the test laid down by the Court of Justice in paragraph 15 of the judgment in Torfaen (the proportionality test) to such legislation:

(a) Is the national court required to apply the criteria set out in Article 3 of Directive 70-50?

(b) If so, does the national measure have to satisfy each of the criteria identified in the indents in the second paragraph of Article 3?

(c) Is it the function of the national court to examine the facts (as proved by evidence) and come to its own conclusion regarding the applicability of those criteria, or is the function of the national court limited to deciding whether or not a national legislature acting reasonably could have adopted the legislative measure in question having regard to those criteria?

(d) When assessing the restrictive effects of the national legislation on the free movement of goods, and also when comparing the restrictive effect on trade (if any) of the various different means that might be used to achieve the objective of the legislation, must the national court look only at the extent to which the effects on imported goods exceed the effects on domestic goods or can it look at the totality of the restrictive effects on intra-Community imports?

(e) Is the relevant restrictive effect on trade to be examined in relation to: the overall effect on intra-Community trade in goods and/or services; or the effect on the sectors in which the undertaking in question operates; or the effect on that undertaking?

(f) How is a national court to compare the restrictive effects on the free movement of goods arising from the national legislation with the objective of that legislation?

3. Has Article 36 of the EEC Treaty any and if so what application to a national measure such as that in question?

4. Is the answer to any of the above questions affected by the existence of exceptions to the legislative prohibition on Sunday trading?

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, 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.

7 The national court' s first question raises a point of interpretation of the judgment in Torfaen Borough Council, cited above.

8 It must be borne in mind that in its judgments in 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, the Court stated 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 the employment of staff on Sundays.

9 Furthermore, in its judgment delivered today in Case C-169-91 Council of the City of Stoke-on-Trent and Norwich City Council v B & Q plc, the Court has held 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.

10 The same answer must be given to the first question referred to the Court in the present case.

11 In view of the answer given to that question, it is unnecessary to give a ruling on the other questions submitted.

Costs

12 The costs incurred by the United Kingdom Government 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 Reading and Sonning Magistrates' Court by order of 9 August 1990, 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.