C-155/80

JUDGMENT OF 14. 7. 1981 — CASE 155/80

thereby the establishment of a differ- without leading to any difference in ence in treatment between the dom- treatment whatsoever on the ground estic trade of a Member State and its of the nationality of traders and with- export trade, in such a way as to out distinguishing between the dom- provide a particular advantage for estic trade of the State in question national production or for the dom- and the export trade. estic market of the State in question. 3. Articles 30 and 34 of the EEC Treaty This is clearly not the case with rules do not apply to national rules which which are part of economic and social prohibit the production of ordinary policy and apply by virtue of objective and fine baker's wares and also their criteria to all the undertakings in a transport and delivery to individual particular industry which are estab- consumers and retail outlets during lished within the national territory, the night up to a certain hour.

In Case 155/80

REFERENCE to the Court under Article 177 of the EEC Treaty by the Amtsgericht [Local Court] Wiesbaden for a preliminary ruling in summary proceedings pending before that court against

SERGIUS OEBEL,

on the interpretation of Articles 7, 30 and 34 of the EEC Treaty,

Facts and Issues

JUDGMENT OF 14. 7. 1981 — CASE 155/80

November 1956 (Bundesgesetzblatt I, tered at the Court Registry on 2 July p. 875), as last amended by the Ein- 1980. führungsgesetz zum Gesetz über Ord- nungswidrigkeiten [Law on the intro- In accordance with Article 20 of the Pro- duction of the law on contraventions] tocol on the Statute of the Court of Jus- of 24 May 1968 (Bundesgesetzblatt I, tice of the EEC, written observations p. 503)." were submitted by Sergius Oebel, rep- resented for that purpose by Gleiss, Lutz, Hootz, Hirsch and Associates of the In the belief that the above Article 5 of Stuttgart Bar, by the German Govern- the Law on working hours in bakeries ment represented by Martin Seidel, Min- and confectionery shops might be incom- isterialrat at the Federal Ministry for patible with Articles 7, 30 and 34 of the Economic Affairs, and Arved Deringer, EEC Treaty because it creates distortion of the Cologne Bar, by the French in competition within the Community Government, represented by Thierry Le owing to the fact that the Federal Repub- Roy acting in the name of the Secretary- lic of Germany is the only Member State General of the Comité Interministériel of the Community which maintains the pour les Questions de Coopération Éco- prohibition on nightwork in the sector nomique Européenne [Inter-departmen- under consideration, and as that law in tal Committee on Matters of European practice excludes the delivery of fresh Economie Cooperation] and by the products in other Member States adjac- Commission of the European Communi- ent to Germany in time for them to be ties, represented by its Legal Adviser, sold early in the morning, the Amtsge- Rolf Wägenbaur. richt Wiesbaden stayed the proceedings and referred the following questions to Upon hearing the report of the Judge- the Court of Justice pursuant to Article Rapporteur and the views of the Advo- 177 of the EEC Treaty: cate General the Court decided'to open the oral procedure without any prepara-

other Member States? (a) The defendant in the main proceed- ings, Sergius Oebel, first of all points out 2. Must Articles 30 and 34 of the EEC that the prohibition on nightwork applies Treaty be interpreted as meaning only to commercial bakeries and does that the effects of Article 5 of the not exist in the other countries of the Gesetz über die Arbeitszeit in Bäcke- Community.

As regards less perishable bakery prod- The prohibition on nightwork compels ucts, the prohibition on nightwork also work to be done at a time of day which leads to obstacles to exports. Under the is unsuitable from the physiological point German rules less perishable bakery pro- of view. The health needs of workers in ducts escape the prohibition on night- the bread industry would in fact be bet- work only in fact when they are made on ter served by regular work at night than premises used solely for the purpose of by this prohibition which makes it making such products, whereas large- necessary for them to get up between scale German bakeries generally make 2 and 3 o'clock and to travel at night fresh bakery products and less perishable to their place of work in order to start bakery products on the same premises. work at 4 o'clock. Furthermore, from As a result, even in the case of less per- the point of view of industrial medicine, ishable bakery products, the majority of there is no reason to impose more strin- German manufacturers are not or are gent requirements, as regards prohibiting barely competitive on the national mar- nightwork, in the case of workers in the kets of their foreign competitors. bread industry than in the case of those in other industrial sectors. That distortion of competition is even more marked by the fact that the prohib- As regards the practical effects of the ition on nightwork prevents the makers legislation in question, Mr Oebel argues of German bakery products from arrang- by means of examples and statistical data ing their work in three shifts and thereby that the prohibition on nightwork ham- rules out the optimal, and even a merely pers German manufacturers of bakery economically rational, use of their pro- products and puts them at a disadvantage duction plant. As a result, the level of compared to all their European competi- production of German manufacturers tors. must necessarily remain lower than that of foreign competitors who may keep their plant in production without inter- As regards fresh bakery products, the ef- ruption for three shifts thereby achieving fect of the German legislation is, first, to a higher level of productivity and util- cut down exports to other countries of ization of plant and thus lower pro- the Community, especially in the border duction costs and selling prices. areas. Mr Oebel here makes the point that, faced with the consumer's desire to have fresh produce in the morning, a re- In support of his case, Mr Oebel draws tailer is compelled to require deliveries attention to two decisions of the Bundes- between 6 and 7.30 a.m. and to choose verfassungsgericht [Federal Consti- his suppliers accordingly. Secondly, tutional Court] of 23 January 1968 and owing to the existence of the prohibition 25 February 1976 which, while conclud-

ing that the rules in question are, in the Like Mr Oebel, the German Government circumstances, compatible with the Ger- draws attention to the two decisions of man Basic Law, nevertheless acknowl- the Bundesverfassungsgericht of 23 edged, in the later decision, that owing January 1968 and 25 February 1976. In to the prohibition on nightwork "some those decisions the Bundesverfassungsge- undertakings in border areas will richt admittedly described the prohibition perhaps be in a difficult competitive pos- on nightwork in bakeries as a serious ition". curtailment of occupational freedom and of the scope for the economic develop- ment of large bakeries and undertakings in the bread and pastry industry but it nevertheless held, in particular on The German Government retraces the his- grounds of social policy, that such regu- tory of the legislation in issue and states lation of the pursuance of an occupation that the purpose of the legislation is pri- may be justified by overriding grounds of marily to protect workers in the bread public interest. The Bundesverfassungs- and pastry industry against permanent gericht held that the German legislature work at night likely to harm their health. has the right to maintain the prohibition Ergonomie studies have apparently even in respect of undertakings in which shown that the period between midnight the objective of social policy might be and 3 a.m. (nocturnal energy decline) is achieved by less drastic means, for exam- particularly unfavourable for working, ple, by compulsory changes of shifts, ar- and that the performance of work during guing that those undertakings would that period is more demanding and takes otherwise obtain a considerable compe- a great toll on a person's reserves of titive advantage over small and medium- energy. Similarly, working between 8 sized bakeries. p.m. and 3 a.m. is more demanding and involves more risk than working only from about 4 a.m. The prohibition on nightwork in bakeries should conse- quently be viewed as a preventive measure against health risks which is a The German Government also stresses step towards a wider humanization of that, contrary to the impression of the work. court making the reference, rules similar or analogous to those in issue exist in all the other Member States of the Com- munity, except in Denmark and the The prohibition on working at night is Netherlands. At the international level, further designed to afford equal con- the idea of protecting persons employed ditions of competition and helps to pro- in businesses making bread and pastries tect medium and small-scale businesses; is expressed in Convention N o 20 of without it the existence of many small, the International Labour Organization family businesses might be jeopardized at Geneva concerning nightwork in by competition from bread factories bakeries. which could use their production plant without interruption and could thereby produce their products at a much lower cost than small, family businesses work- ing one shift a day. Thus the mainten- ance, in large undertakings, too, of the (b) The Commission of the European prohibition on nightwork indirectly helps Communities in substance states that the to protect workers in small businesses. German law in question, whilst regarded

1. Interpretation of Article 7 of the EEC Treaty "There is no breach of the prohibition on discrimination contained in Article 7 of the EEC Treaty if a Member State of (a) Mr Oehel lays importance on the the Community by a legal provision cre- interpretation to be given to Articles 30 ates a situation which to a considerable and 34 of the EEC Treaty. As regards extent affects the competitivity of its own the question whether Article 7 of the nationals compared to the nationals of EEC Treaty must be construed to mean other Member States in the same occu- that the prohibition on nightwork and pation". the prohibition on delivering at night contravenes the rule which it lays down, he leaves that to the Court to decide. (c) The French Government states that Article 7 of the Treaty cannot be usefully invoked in the action brought before the (b) The German Government contends court which has made the reference. The that neither the prohibition on nightwork object of that provision is to specify nor the prohibition on delivering at night national treatment for all the nationals of constitutes discrimination on grounds of the Member States of the Community nationality within the meaning of Article who enjoy freedom of movement or of 7 of the EEC Treaty. Although the establishment. But that rule of non-dis- Court of Justice has admittedly decided crimination is operative only within the in some cases that even measures appear- territory of each Member State taken sep- ing to be neutral and applying equally to arately. It does not however mean that a nationals of a State and those of other German or French undertaking estab- Member States may constitute unlawful lished in the Federal Republic of discrimination under Article 7 of the Germany may allege discrimination on EEC Treaty — if they produce different the ground that the German legislation effects according to different factual proves to be more stringent for it and circumstances — that applies only to more favourable to workers than legis- discrimination against nationals of other lation of other Member States in the sec- Member States on the ground of their tor under consideration. In any event it nationality. On the other hand, accord- is not certain whether the principle of ing to the Court's case-law, there is no non-discrimination may be invoked by discrimination if national rules place the the nationals of the Member States nationals of the Member State under themselves; that is a question which does consideration at a disadvantage in re- not appear to have been resolved by the lation to those of other Member States, case-law of the Court of Justice.

Besides, cases of distortion in conditions adopt national provisions on condition of competition owing to disparities found that they must not be contrary to the to exist between national laws cannot be mandatory provisions of the Treaty. resolved by the mere direct application There is therefore no breach of the pro- of Article 7 but come under the har- hibition on discrimination as a result of a monization procedures provided for Member State's using its right to subject this purpose by Article 101. a precise situation to objective rules. Nor is there any breach of that prohibition as a result of national rules' having a dif- ferent content from that of rules apply- ing in the other Member States, even if What is more, in the sphere of social pol- some distortion of competition necess- icy, including the regulation of working arily arises from them. Where diffi- hours, such harmonization is subject to culties occur it is more appropriate to special principles and rules. For example, ask whether harmonization is needed. the preamble to the Treaty envisages According to the case-law of the court, "the constant improvement of the living in particular in its judgment of 30 and working conditions" of the peoples November 1978 (Case 31/78 Bussone of the Member States (third recital), and [1978] ECR 2429), Article 7 of the EEC Article 117 states that "Member States Treaty does not concern "national rules agree upon the need to promote which are not applicable on the basis of improved working conditions and an im- the nationality or the traders concerned proved standard of living for workers, so and which take into consideration solely as to make possible their harmonization the location of the commercial activi- while the improvement is being main- ties". tained". Article 118 expressly includes the regulation of working conditions among the fields in which cooperation between Member States should be pro- moted (see the Council's resolution of 18 December 1979 on the adaptation of The Commission consequently proposes working hours). In the opinion of the that the answer to the first question French Government, the German legis- should be that Article 7 of the EEC lation in question, far from offending Treaty must be construed to mean that against the principles and rules of the there is no infringement of that provision Treaty, on the contrary helps to achieve where a Member State adopts on its ter- ritory generally binding rules on working the very objectives of the Treaty. hours in respect of the manufacture and distribution of bread and pastry pro- ducts.

taken to mean that bread products may justified by Article 36 of the EEC not be delivered to customers or to Treaty; that provision is an exception retail shops before 5.45 a.m. — consti- clause, to be interpreted restrictively, tute measures having an effect equivalent which permits derogations from the basic to a quantitative restriction prohibited by rules of Articles 30 and 34 of the EEC Article 34 of the EEC Treaty as they Treaty only on certain well-defined meet the double criterion defined by the conditions. Under well-established case- case-law of the Court of Justice, namely law of the Court restrictions derogat- that they represent measures emanating ing from the basic principle of the free from the State and are likely to impede movement of goods are however com- trade. patible with the Treaty only to the extent to which they are justified, that is to say to the extent to which they are needed in particular, in order to It is solely owing to those national rules, guarantee the protection of health and applying at the production stage, that life of humans. The exception contained German manufacturers of bakery prod- in Article 36 of the EEC Treaty does not ucts cannot export their products or can operate however if the health of humans do so only to a limited extent. The defi- may be protected just as effectively by nition of a measure having an equivalent measures less restrictive to intra-Com- effect given by the Court covers all munity trade. national measures which act as an ob- stacle to trade. It therefore also covers rules applying at the production stage. That was moreover expressly confirmed in the judgment of 30 October 1974 Furthermore, under the Court's case- (Case 190/73 van Haaster [1974] ECR law, aims of economic policy cannot 1123) in which the Court declared that a justify an obstacle to trade between national measure restricting production Member States. affects "or is at any rate capable of af- fecting" trade and must therefore be considered a measure having an equiv- alent effect. Finally, there is, again according to the case-law of the Court, a presumption that a measure is not necessary to protect the legal values set forth in Article 36 The judgment of the Court of 8 No- when, as in this case, no comparable vember 1979 (Case 15/79 Groenveld rules exist in the other Member States. [1979] ECR 3409) does not conflict with That may be inferred from the funda- that evaluation as it concerns only the mental considerations which the Court rare and exceptional case of a very wide enunciated in the "Cassis de Dijon" and prohibition on production, different from "meat preparations" judgments (Cases that in this case. The present case is not 120/78 [1979] ECR 649 and 153/78 one of a general prohibition on the [1979] ECR 2555). manufacture of a given product but on the export of a product widely available on the national market, which is ren- dered impossible in practice. According to those principles the pro- Neither the prohibition on nightwork hibition in issue on nightwork cannot nor that on delivering at night can be be justified on the basis of Article 36 of

the EEC Treaty. It emerges from the between less perishable products and ergonomie report placed on the file breads and pastries ordinarily consumed that the prohibition is not of a kind such at breakfast. In the case of less perishable as to protect the health of the workers products there is no obstacle to import- engaged in the bakery sector. Work in ation because they do not necessarily bakeries is to be regarded as easy and have to be delivered to their destination moderately arduous so that from the on the same night.

cluding those engaged in undertakings capable of working in shifts. Extension According to the German Government of the rule in that way offends against the prohibition on nightwork and on de- the principles of necessity and pro- livery at night does not constitute an portionality recognized in a well-estab- obstacle to exports within the meaning of lished body of case-law of the Court. Article 34 of the EEC Treaty either. There is also a breach of the general principle of equality, a fundamental principle of Community law, as the equal As far as control at the production level treatment on an abstract and formal basis is concerned, German bakeries can of all bakery businesses amounts to ma- manufacture products in sufficient terial discrimination against undertakings quantity and quality for export during capable of working by shifts and thus the periods of production.

OEBEL

more at night. As far as the prohibition on delivery is concerned, it does not constitute an obstacle to exports within the meaning of Article 34 because, first, less perishable Finally, it must be borne in mind that the products are not delivered "oven-fresh" prohibition on nightwork and on deliv- anyway, and, secondly, because breads ery is of disadvantage at most to a lim- and pastries consumed at breakfast ited number of bakeries in competition which the consumer wishes to have with bakeries located in the border areas "oven-fresh" on his table can for that of neighbouring Member States, whereas reason only be delivered short distances its abolition would leave unprotected

1979 (Case 15/79 Groenveld [1979] ECR 3409), concerns only "national measures which have as their specific object or ef- "The effects of Article 5 of the German fect the restriction of patterns of exports Law on working hours in bakeries as re- and thereby the establishment of a dif- gards the export and import of freshly- ference in treatment between the dom- baked products are not to be regarded as estic trade of a Member State and its measures equivalent to a quantitative re- export trade . . . at the expense of the striction on imports or exports within the production or of the trade of other meaning of Articles 30 and 34 of the

family bakeries. They are necessary and proportionate to the intended aim, to the extent, too, that they apply to bread and Article 34 cannot be invoked either be- pastry factories, since without them those cause the very concept of measures hav-

As regards the interpretation of Article As regards Article 30, the Commission 34, the Commission points out that the observes that, far from constituting an rules on working hours contained in the obstacle to imports, the prohibition on German legislation have effects similar to nightwork as such may even promote those of rules on production since pro- them. ducts which must be sold as soon as pos- sible after emerging from the oven can be sold early in the morning only if it was possible to make them the night be- fore. The Commission however con- cludes, on the basis of the judgment of However, it is possible to ask whether 8 November 1979 cited above, that the the rules in question might not have ef- legislation in question is not to be re- fects equivalent to a quantitative restric- garded as incompatible with Article 34 tion on imports where distribution is because it is objective in character and concerned. The prohibition on transport- does not have the object or the effect of ing bread and pastries at night between specifically restricting patterns of exports 10 p.m. and 5.45 a.m. constitutes an and does not establish any difference in

OEBEL

2 These questions were raised in the course of a prosecution for a contra- vention of Article 5 of the German Law on working hours in bakeries (Gesetz über die Arbeitszeit in Bäckereien 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

JUDGMENT OF 14. 7. 1981 — CASE 155/80

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, inter- mediaries 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 compe- tition.

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:

8 It follows that national rules which make no distinction, directly or in- directly, 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.

JUDGMENT OF 14. 7. 1981 — CASE 155/80

Second question

1 1 By the second question the national court asks whether the effects of dom- estic 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.

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.

T h e r e s t r i c t i o n s on t r a n s p o r t a n d d e l i v e r y

17 The accused also challenges the prohibition, included in the rules on night- work 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-

22 The costs incurred by the German Government, the French Government and the Commission of the European Communities, which have submitted obser- vations 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 pro- secution pending before the national court, costs are a matter for that court.

OEBEL

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 statu- tory 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.