Law Report: Sunday trading rules do not breach EC law: Stoke-on-Trent City Council and Norwich City Council v B & Q plc - European Court of Justice, Luxembourg, 16 December 1992

National rules prohibiting shops from opening on Sundays do not have restrictive effects on Community trade which exceed the effects intrinsic to such rules in relation to the socio-cultural aims pursued. Therefore article 30 of the EEC Treaty, which prohibits measures which have an effect equivalent to a quantitative restriction on imports from other member states, does not apply to national legislation which prohibits retailers from selling certain goods on Sunday.

The European Court of Justice, on a reference for a preliminary ruling under article 177 of the EEC Treaty by the House of Lords, 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 retailers from opening their premises on Sundays.

The councils brought proceedings against B & Q for contravening sections 47 and 59 of the Shops Act 1950 by opening its shops on Sundays for commercial transactions other than those listed in Schedule 5. The Schedule contains a list of items which by way of exception may be sold in shops on Sundays. They include intoxicating liquors, certain foodstuffs, tobacco, newspapers and other products of everyday consumption.

In the House of Lords, the parties differed as to the interpretation to be given to the ECJ's judgments in, on the one hand, Torfaen Borough Council v B & Q plc (1989) ECR 3851 (the Independent, 24 November 1989); and, on the other, Union Departmentale des Syndicats CGT de l'Aisne v Conforama (1991) ECR I-997 and the Marchandise case (1991) ECR I-1027 (the Independent, 14 March 1991).

The House of Lords stayed the proceedings and referred, among others, the following question for a preliminary ruling: is the effect of the ECJ's ruling in Conforama and 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 Torfaen Borough Council, which prohibit retailers from opening their premises on Sunday for the serving of customers with certain goods?

THE EUROPEAN COURT OF JUSTICE said that in its three judgments in Conforama, Marchandise and Torfaen Borough Council, the court found that various bodies of national legislation concerning the closing of shops on Sundays were not intended to regulate the flow of goods.

It was also apparent from those judgments that such legislation might have adverse repercussions on the volume of sales of certain shops, but that it affected the sale of both domestic and imported products. The marketing of products from other member states was not therefore made more difficult than the marketing of national products.

In its judgments the court recognised 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.

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

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.

The court considered that it had all the information necessary for it to rule on the question of 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 could not be allowed to vary according to the findings of fact made by individual courts in particular cases.

Appraising the proportionality of national rules which pursued a legitimate aim under Community law involved weighing the national interest in attaining that aim against the Community interest in ensuring the free movement of goods.

In order to verify that, the restrictive efffects on intra-Community trade of the rules at isisue did not exceed what was necessary to achieve the aim in view, it must be considered whether those effects were direct, indirect or purely speculative and whether those effects did not impede the marketing of imported products more than the marketing of national products.

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 findings with regard to national rules prohibiting shops from opening on Sundays.

Therefore, in reply to the question, article 30 was to be interpreted as meaning that the prohibition which it laid down did not apply to national legislation prohibiting retailers from opening their premises on Sundays. The decision on costs of the parties was a matter for the national court.

Ying Hui Tan, Barrister