C-145/88

(2) ... (not relevant). B & Q is charged with having contravened Sections 47 and 59 of the United Kingdom Shops Act 1950 (hereinafter referred to as (3) In the year 1987/88 B & Q purchased 'the Shops Act') by opening its retail shop from other Member States items worth premises in Cwmbran to the public on well in excess of UKL 40 000 000. That Sundays. amount represents approximately 10% of B & Q's total purchases.

For the wording of the relevant sections of the Shops Act I refer to part 1.2. of the Report for the Hearing. As is indicated (4) As a result of the enforcement of the therein, there are a good many exceptions ban on Sunday trading there has been a to the prohibition; furthermore, it is not substantial and continuing reduction in disputed that the law is disregarded to a sales turnover in a number of B & Q's

* Original language: Dutch. 1 — See point7 of the order for reference

OPINION OF MR VAN GERVEN —CASE C-145/88

stores (including the store at Cwmbran). sales of which are permitted, and where The evidence indicates that this loss of the effect of the prohibition is to sales has not recovered over time but reduce in absolute terms the sales of has been maintained. The average loss goods in those premises, including of sales for the stores in question in the goods manuafactured in other Member years 1986/87 and 1987/88 is nearly States, and correspondingly to reduce 23 %. the volume of imports of goods from other Member States, is such a prohibition a measure having equivalent effect to a quantitative restriction on (5) The reduction in sales is across the imports within the meaning of Article board, in the sense that all the items of 30 of the Treaty? stock appear to be affected.

TORFAEN BOROUGH COUNCIL v B & Q PLC

in the order for reference (see paragraph 3 been demonstrated that the disputed hereof, points 6 and 8) that the enforcement provisions of the Shops Act actually restrict of the ban on Sunday trading leads directly the total volume of imports into the United to a reduction in absolute terms of imports Kingdom (see part II. 1 and 3 of the Report into the United Kingdom from other for the Hearing). Member States of many goods sold by B & Q in their stores.

Secondly, the United Kingdom and the 3 — Sec, for example, the judgment of 8 December 1987 in Case 20/87 Ministère public v Camhard[1987] ECR 4879, Borough Council point out that it has not paragraphs 10 to 12

OPINION OF MR VAN GERVEN — CASE C-145/88

on intra-Community trade. The United The second argument seems to me even less Kingdom and the Borough Council suggest compatible with the case-law of the Court. that in the present case the Court is faced In its judgment in Dassonville the Court by the same kind of situation and that those made it clear, and since then has judgments are therefore determinative as continuously repeated, that 'all trading regards the answer to be given to the rules . . . which are capable of hindering, preliminary question. In my view, this is not directly or indirectly, actually or potentially, correct: according to the national court's intra-Community trade' are to be regarded findings of fact, imports into the United as measures having an effect equivalent to Kingdom have been reduced to some extent quantitative restrictions. 4In its decisions the as a result of the application of the ban on Court has accordingly made it clear that a Sunday trading. The Court is therefore trader who challenges a national measure asked to assume that there is a causal link on the ground that it constitutes a between the contested legislation and the prohibited measure having equivalent effect reduction in imports; such a link was not does not need to demonstrate that the found in the Oebel, Blesgen or Forest cases. measure actually restricts intra-Community trade or restricts it overall.

. . in fact has no effect 5 — See the judgment of 24 November 1982 in Case 249/81 on . . . imports and is not likely to impede trade between Commission v Ireland [1982] ECR 4005, at pp. 4022 Member States'. and 4023, paragraphs 22 to 27. 8 — The most recent example is the judgment of 16 May 1989 6 — Judgment of 14 July 1981 in Case 155/80 Sergius Oebel in Case 382/87 Buet [1989] ECR 1235; see paragraph 7 of [1981] ECR 1993, at p. 2010, paragraph 20. that judgment.

application of national rules to a well- this possibility does not arise: the contested defined factual situation arising in the main provisions of the Shops Act must be proceedings. It is certainly not always classified as falling squarely within the possible (nor desirable) that in a preliminary principle laid down in Dassonville and ruling the Court should express its views on therefore prima facie fall within the application situations which go beyond prohibition laid down in Article 30. The those arising in the main proceedings and of Borough Council as well as the United which the precise facts are not known or Kingdom and the Commission have, insufficiently known. however, argued that the principle laid down in Dassonville is either inapplicable in this case or does not lead to the conclusion that the contested provisions fall within the scope of Article 30. Finally, I would also hesitate to accept the assertion that in the case now before the Court there is no evidence, on account of the general scope of the provisions of the Shops Act, of a barrier against a specific 10. According to the Borough Council, the product. The question which arises in this contested legislation is not simply a set of case is whether the contested rules create a 'trading rules' within the meaning of the barrier within the meaning of Article 30 judgment in Dassonville but is an expression with regard to the products in which B & Q of the 'police power' which the Member deals. This is what the national court clearly States have retained under Article 30. In the 9 observations of the Borough Council the finds to be the case. expression 'police power' or 'police law' is primarily defined according to the conse­ quences to which such a measure is likely to give rise. They are rules which are too Does the Shops Act contain 'trading rules'? remotely connected with intra-Community trade and whose restrictive effects are the unavoidable consequence of the general regulation of social or commercial life. The 9. The considerations set out above lead me Borough Council's contention (which it to the conclusion that there are no considers to be borne out by the judgments convincing reasons to reject the national in Oebel and Blesgen, cited above) is that court's factual assumptions as irrelevant and such rules fall outside the prohibition laid to re-word the first question. down in Article 30 if they are applied without distinction.

inter-State trade. Where, however, measures Court's judgment of 18 May 1989 in the having general scope are concerned, it case of The Queen v Pharmaceutical Society appears from the case-law of the Court that of Great Britain, in which it was held these do not fall within the scope of Article that a rule requiring pharmacists to supply 30 of the EEC Treaty unless they are of a only the medicinal products specifically discriminatory nature or in practice place mentioned in the doctor's prescription may imported products in a more unfavourable constitute a measure having equivalent position than domestic products. Rules effect. Yet the measure concerned was a regarding working or opening hours, or 'neutral' rule of professional ethics which rules stipulating which goods may be had no demonstrable connection with the offered for sale in specific sales outlets, do importation of products. Nevertheless, from not fall under the general regulation of the established fact that imports of foreign social or commercial life. Even if they have pharmaceutical products had nearly dried a certain restrictive effect, they do not up after the rule had been in force for a prevent the importation or the marketing of short while the Court concluded that the imported goods; their effect (if they have possibility could not be ruled out that the any effect at all) cannot be determined rule formed an obstacle to intra-Community precisely. trade; the question whether or not the rule was to be characterized as a trading rule was not considered. 11 Another example is provided by the judgment in the Buet case

Court. For the creation of a new category than in the case of a general measure. But I of (police) measures which, on the one hand, are applicable to the production and 10 — Judgment of 18 May 1989 in Joined Cases 266 and 267/87 The Queen v Pharmaceutical Society of Great Britain and marketing of goods but, on the other hand, Others [1989] ECR 1295. are not trading rules there is no support at 11 — See, however, the (different) conclusion of Mr Advocate General Darmon in his Opinion of 10 March 1989, in all in the decisions of the Court. That particular at paragraphs 19 to 28. principle has just been confirmed in the 12 — Judgment of 16 May 1989, cited above in footnote 8.

In the case of measures in the third category, the Commission considers that the link with the importation of goods is more The various categories of 'measures applying remote. They do not prevent imports but without distinction ' may reduce them by imposing restrictions on outlets or uses of the goods falling within their scope (and thus on the demand for those goods). Those barriers are, however, quite different in nature from the barriers which arise from the first two categories: whilst the trade barriers in the 13. Allow me to recall, by way of intro­ first two categories arise from the disparities duction to this point, the observations between the various national rules, the submitted by the Commission. The barriers in the third category are created by Commission proceeds on the basis of the the very existence of the rules; any disparity generally accepted distinction between is immaterial. In the Court's case-law the 'discriminatory measures' and 'measures Commission has identified three cases in applying without distinction'. In the second which the Court ruled on measures group it distinguishes three different belonging to the third category: they are the 1 categories according to the nature of the Oebel, 3Blesgen14and Forest15cases. In its measures in question. The first category view, those judgments are also decisive in consists of measures which regulate the the present case. conditions (as to nature or composition, size, shape, packaging, labelling and denomination) which products must satisfy to be admitted to the market. A disparity between the various national rules in this 14. Before I come to my own assessment, it category will inevitably create barriers to would be useful to point out that a clear line trade because goods legally manufactured of development is evident in the Court's or brought into circulation in the Member case-law on national measures falling under State of exportation have to be adapted in Article 30 of the Treaty. At the outset it was order to be sold in the Member State of made clear that a national measure which importation. A second category of measures was discriminatory (in form or, as was are those which prohibit the importation quickly emphasized, in substance) towards and manufacture (or simply the marketing) imported goods was caught by the of certain products. These measures impose prohibition laid down in Article 30. In that an absolute ban on importation in respect of situation, which does not arise in this case, the products which they concern and as the Court considered the measure in such may be regarded as quantitative question to be permissible only on one of restrictions on imports rather than as measures having equivalent effect. The third 13 — Judgment of 14 July 1981, cited above in footnote 6 category of measures relate to the circum­ 14 — Judgment of 31 March 1982, cited above in footnote 7 stances in which goods may be sold or used 15 — Judgment of 25 November 1986, cited above in footnote 7

the grounds of justification mentioned in rules relating to permissible sales methods. Article 36. As the Commission has correctly pointed out, in this category there is a causal link between the disparity and the trade barrier. Such measures are therefore not permissible 15. The Court subsequently considered the under Article 30, at least where they are not prohibition laid down in Article 30 also necessary in order to satisfy 'mandatory applicable in the case of measures applying requirements', nor acceptable on the basis of to national and imported products without the grounds of justification listed in distinction. This situation involves measures

16. In the present case it is established that such measures also fall under the the contested United Kingdom legislation prohibition laid down in Article 30: does not affect imported products any differently than domestic products. The national court found that the reduction in 'Obstacles to movement within the sales occurring as a result of the Community resulting from disparities enforcement of the ban on Sunday trading between the national laws relating to the is 'across the board', that is to say that it marketing of the products in question must affects all the goods offered for sale by be accepted in so far as those provisions B & Q. Moreover, B & Q has not stated may be recognized as being necessary in that it has to vary its marketing methods as order to satisfy mandatory require a result of a disparity between the various

In another. The rules involved here are either 19 his Opinion in the Cinéthèque case rules relating to the composition, size, shape, weight, presentation, labelling, desig 17 18 — See, for example, the judgment of 15 December 1982 in nation or the packaging of products or Case 286/81 Oosthoeks Uitgeversmaatschappij BV [1982] ECR 4575 (in particular at p. 4587, paragraph 15) which concerned a ban on the use of certain forms of advertising 16 — Judgment of 20 February 1979 in Case 120/78 REWE- and certain means of sales promotion. Zentral AG v Bundesmonopolverwaltung für Branntwein 19 — Judgment of 11 July 1985 in Joined Cases 60 and 61/84 [1979] ECR 649, at p. 662, paragraph 8. Cinéthèque SA and Others v Fédération nationale des 17 — A notable example is the judgment of 10 November 1982 cinémas français, (1985) ECR 2605. The issue in this case in Case 261/81 Walter Rau Lebensmittelwerke v De Smedt was whether a French law which in principle imposed a PvhA [1982] ECR 3961, in particular paragraph 13, which (temporary) ban on the sale or hire of video-cassettes of a concerned Belgian rules which only allowed packaged film being shown in cinemas was compatible with Article 30 butter to be sold or imported in cube form. of the Treaty.

'The importer can in fact import. He is then on exactly the same footing as the domestic trader. The latter gets no extra benefit over the importer, the former suffers no extra 'Nevertheless, the application of such a detriment over the French trader as a result system may create barriers to intra- of the ban on the exploitation of video- Community trade in video-cassettes because cassettes. The factor which would lead a of the disparities between the systems trader in France not to buy from a French operated in the different Member States and video distributor (inability to sell or hire) is between the conditions for the release of the same as that which would lead him not cinematographic works in the cinemas of to buy from a distributor in another those States. In those circumstances a Member State. In this respect both prohibition of exploitation laid down by distributors are subject to the same such a system is not compatible with (Article conditions of trade. They are effectively 30) unless any obstacle to intra-Community operating in the same market. Article 30 trade thereby created does not exceed that cannot have been intended in this respect to which is necessary in order to ensure the give the distributor in another Member attainment of the objective in view and State better conditions than the domestic unless that objective is justified with regard

20 — [1985] ECR 2611 21 — [ 1984] ECR 2611 and 2612

OPINION OF MR VAN GERVEN —CASE C-145/88

A new development in the case-law of the Court

In fact, this situation arose in the Ciné- thèque case: the Court found that the French rules imposed a marketing ban That the judgment in the Cinéthèque case which as a rule lasted longer in France than was not an isolated decision but introduced in other Member States. 22 This marketing a new dimension in the application of ban meant that access to the French market Article 30 is clear from various other recent was (temporarily) closed to undertakings judgments. I am referring here in particular from other Member States which exploited to the case concerning substitutes for milk 23 video-cassettes and which were not subject powder and concentrated milk, the 24 25 to such strict rules in the country of Warner Brothers case, the Buet case and 26 exportation. The obstacle to intra- the Pharmaceutical Society case. Community trade arising in that situation was due not (so much) to the disparity 23 — Judgment of 23 February 1988 ¡n Case 216/84 Commission v France [1988] ECR 793. This judgment has just been between legislation (which did exist in that confirmed by the judgment of the Court of 11 May 1989 in case) but rather to the very existence of the Case 76/86 Commission v Germany (milk substitutes) [1989] ECR 1021. I will deal only with the first-mentioned rules. In such a situation the integration of judgment. markets was actually in jeopardy and the 24 — Judgment of 17 May 1988 in Case 158/86 [1988] ECR 2605. application of Article 30 was indeed 25 — Cited above, in footnote 8. justified. 26 — Judgment of 18 May 1989, cited above in footnote 10. This approach could also have been adopted by the Court in the Oebel, Blesgen and Forest cases (cited above in footnotes 6 22 — Sec paragraph 19 of the judgment. and 7) if the Court had accepted that an obstacle existed.

video-cassettes of that work for a specified period. The Court observed that the commercial distribution of video-cassettes (certainly in the case of recorded, rather than blank, cassettes) increasingly took the form of the hiring out of such cassettes. Under those circumstances, the Court found that the Danish ban on hiring might In the Pharmaceutical Society case, the Court 28 hinder intra-Community trade in video- stated that shortly after the (re-) intro­ cassettes which had been put into free circu­ duction of the contested ethical rule foreign lation in another State where they were not pharmaceutical products virtually disap­ 32 peared from the United Kingdom market. 27 — Sec paragraph 7 of lthe judgment. The French Government That may be regarded as sufficient evidence had not contested the applicability of the prohibition in Article 30 sec paragraph 4 of the judgment. In any event that the practical effect of the contested rule the applicability of Article 30 to prohibitions on marketing was to make it more difficult to trade in applying without any temporal limit had already been established Sec the judgment of 17 December 1981 in Case 272/80 Frans-Nederlandse Maatichappy voor Biologische 29 — See paragraph 19 of the judgment. Pmducln BV[1981] ECR 3277 30 — Cited above infootnote 18 28 — Just as in Cmelheque, it is to be expected that, by the end of the longer prohibition period, interest in video-cassettes 31 — Sec paragraphs 7 and 8 of the ludgment of a film will have declined. 32 — Sec paragraph 18 of the judgment

OPINION OF MR VAN GERVEN — CASE C-145/88

21. As has been seen, in this recent series of judgments the Court's line of approach was In fact, in both fields the doctrine of the to examine not whether imported products economic balance of the consequences of were put at a disadvantage but whether the the 'cartel agreement' or the 'trading rules' 35 36 Community market was partitioned into is rejected. separate national markets. In this connection it is appropriate to make a comparison with the judgments of the Court on the prohibition of cartels laid down in Article 85. The concepts of the partitioning 22. This is not the place to dwell on the or compartmentalization of the market are comparison between Article 30 and Article certainly well known in that domain. 85 as regards the hindering of intra- Furthermore, in its judgment in Dassonville, Community trade, which is mentioned in the Court used virtually the same formula as both articles. The two articles are worded it had previously used to define more differently, not least because they are precisely the words 'affect trade between addressed to different entities (Member Member States' appearing in Article 85. States and undertakings, respectively) and 33 consequently have different types of Thus in its judgment of 30 June 1966 in Case 56/65 Société technique minière v obstacles (national rules and cartel Maschinenbau Ulm, the Court stated that a agreements) in view. In addition, one of the cartel agreement might affect trade between purposes (or, according to some commen­ Member States if it was to be feared that tators, the only purpose) of the rule in the agreement Article 85 that intra-Community trade must be affected is to delimit the field of

application of Community law from that of renders access to a national market more national law. difficult. In the first situation, the prohibition laid down in Article 85(1) 37 applies virtually automatically, by reason of the absolute territorial protection which These differences, however, do not alter the by sealing off a national market it affords to fact that both articles (together with others) the undertakings concerned. In the second pursue the same fundamental purpose, as situation, the prohibition laid down in

39 basis, thereby holding up the economic interpénétration which the Treaty is In view of this general scheme of the Treaty designed to bring about and protecting and in the light of the aforementioned domestic production . . . [making it] more parallels in the terms used by the Court to difficult for producers or sellers from other define obstacles to trade between Member Member States to be active in or penetrate 40 States under Articles 30 and 85, the obvious the [relevant national] market)'. step is to consult the extensive case-law of the Court on Article 85 in order to understand the concept of 'partitioning (or "compartmentalization") of the market'. It seems to me that a similar distinction between the screening off of national markets and the increasing of barriers to the national markets must be drawn in applying

OPINION OF MR VAN GERVEN — CASE C-145/88

which concerns a national rule which is not the Warner Brothers, Buet and Pharma- in fact discriminatory and does not ceutical Society cases. In the Warner Brothers adversely affect imported products but and Buet cases an unacceptable increase in whose very existence may constitute a threat barriers resulted from the fact that an indis­ to market integration between Member pensable method of marketing the products States (see paragraphs 17 and 18 above). concerned was excluded. In the Pharma- ceutical Society case it could be shown that the market share of imported products virtually shrunk to nothing a short time after the contested ethical rule had been 44 announced.

TORFAEN BOROUGH COUNCIL v B & Q PLC

No market partitioning effect in this case producers of or traders in products from other Member States.

25. By applying the foregoing consider­ In those circumstances I conclude that the ations to the present case, I reach the application of a rule such as that at issue in conclusion that it does not appear that a the main proceedings, even if it has a rule such as that at issue in the main certain appreciable (adverse) effect on proceedings screens off the national market imports of the goods concerned, is not of or unacceptably increases the difficulty of such a nature as to restrict intra-Community penetrating that market in the case of the trade so as to warrant the application of products offered for sale by B & Q. Such a Article 30 of the Treaty. rule certainly contains no prohibition of marketing comparable to a quantitative restriction by which the national market is screened off; nor does it make it so much more difficult to penetrate that market that II — In the alternative: the second and third the economic interweaving of national questions markets is thereby threatened.

OPINION OF MR VAN GERVEN — CASE C-145/88

As regards legal discrimination against, or detriment to, Article 36, the Borough Council considers 45 imported products. The question may the rule justified on grounds of the arise whether excessive demands would not protection of health and life of humans, of then be put on the Court, which would be public policy and of public morality. confronted with countless new 'mandatory requirements' and grounds of justification. In connection with Article 30, national policy decisions would constantly be submitted to it with a request to extend the list of examples of mandatory requirements. The United Kingdom's position is more It is to be feared that that list would grow straightforward: in its view, the Shops Act is constantly and would coincide with a intended to meet the imperative need to certain residual power of the Member protect the general character of Sunday as a

27. In case the Court should decide that a requirements and the measure at issue. ban on Sunday trading must be regarded as a restriction on intra-Community trade that is covered by Article 30 of the Treaty, I will now consider in the alternative whether such a restriction is necessary in order to satisfy mandatory requirements or one or 28. Regardless of what mandatory more of the grounds of public interest listed requirements or grounds may be accepted as in Article 36 of the Treaty. justifying the measure in this case, there is a preliminary question which must be answered : may a rule which is enforced by a 45 — Apart from a restriction on Sunday trading, other examples 47 would be restrictions on the opening of new businesses in Member State only sporadically be relied the framework of planning legislation (see the judgment in Gauchard, cited above in footnote 3), regulations which provide for the confiscation of goods for failure to pay 47 — The Home Office Report entitled 'The Shops Act — taxes (see Case 69/88, pending before the Court), the Late-night and Sunday opening: Report of the Committee imposition of speed limits, and so forth. of Inquiry into proposals to amend the Shops Acts', 46 — The Court has always confirmed that the purpose of presented to Parliament in November 1984 and attached as Article 36 of the Treaty is not to reserve certain matters to Annex 2 to B & Q's observations, states that since 1974 the exclusive jurisdiction of the Member States. See the enforcement of the Shops Act has been the responsibility of judgments of 10 July 1984 in Case 72/83 Campus OH Ltd v the local authorities. Some authorities have adopted a Minister fir Industry and Energy [1984] ECR 2727, policy of not enforcing the law at all; many others act only paragraph 32, and of 12 July 1979 in Case 153/78 in response to complaints (paragraph 25 of the report).

TORFAEN BOROUGH COUNCIL v B & Q PLC

upon by that State as being necessary in not the purpose of Article 36 to reserve order to comply with mandatory require­ certain matters to the exclusive jurisdiction ments? This is a difficult question. A of the Member States implies that the negative answer would be tantamount to the Court must exercise some control over what application of a form of estoppel in the is regarded by a Member State as falling assessment of the acceptability of a within the concept of public morality. The mandatory requirement: a Member State prevention of offence to religious would be estopped from departing from convictions does not seem to me to fall Community law on the basis of a 'necessity' within that concept. which the Member State relies on but does 48 not in fact endeavour to meet. I am inclined to the view that it should not be possible to rely on a mandatory requirement Nor does the protection of public policy if it is established that a Member State seem to me to be applicable here. Reliance entirely fails to make any effort to fulfil on that ground, the scope of which must be 51 such a requirement. That cannot, however, interpreted strictly, requires be said of the national rule at issue in this case. It is true that there are indications that the Shops Act is enforced only sporadically 'the existence... of a genuine and suffi­ or inconsistently (in this regard see ciently serious threat to the requirements of paragraph 32 below), but not that it has public policy affecting one of the funda­ fallen into disuse (as is shown inter alia by 52 mental interests of society'. the fact that in 1985 a proposal to repeal the Shops Act was rejected by the United Kingdom Parliament). It is not difficult to see that there is no question of such a threat in this case.

OPINION OF MR VAN GERVEN — CASE C-145/88

idea of 'protecting Sunday as a non-trading trade between Member States more than is day'. If this is a collective term for the necessary. If it is assumed that Sunday, as mandatory requirements referred to above, opposed to other days of the week, is a it need not be considered separately. It better day for selling the goods concerned 53 would, however, be difficult to prove that it in this case, then to leave open the choice is proportionate to the aim pursued (see of a specific day, no matter which, is paragraph 31, below). If, on the other hand, undoubtedly a less restrictive alternative as it refers to a separate mandatory far as intra-Community trade is concerned. requirement and is understood, for example, as a need to give citizens on one and the same day the opportunity to devote their time to all kinds of (non-working and inter alia religious) activities and social contacts, then I myself can accept that, but not The position is different, however, if one without great hesitation: it shows how easy accepts (as I have suggested, with great it is to put forward new and prima facie hesitation, in paragraph 30 above) that a justified mandatory requirements and how ban on Sunday trading meets the desire to difficult it is for the Court to evaluate them encourage all manner of (non-working) in an objective manner. activities and social contacts on one and the same day. In that case, the imposition of a general closing or non-trading day on a day already devoted to such activities and contacts by a large part of the population is indeed necessary and proportionate to the 31. But even if one of the aforesaid aim pursued. mandatory requirements is accepted, it must still be considered whether the contested rule, in its present form, is necessary for the fulfilment of, and proportionate to, the mandatory requirement relied upon.

pursued, that is to say no more restrictive different constituent pans of the United for intra-Community trade than is necessary Kingdom, and notwithstanding the fact that for the intended purpose; whether the rule they contain certain exceptions of limited 54 achieves its purpose in this respect is scope, these laws, taken as a whole, have as irrelevant. The 'reasonableness' of a their purpose the prohibition, or at least, the measure is relevant for purposes of restraining, of the manufacture and Community law only in so far as the marketing of publications or articles of an measure may not be a means of arbitrary indecent or obscene character' (paragraph discrimination or a disguised restriction: in 21 of the judgment). this case, this means arbitrary discrimination against goods from other Member States or concealed protection of the Member State's own market. The fact that within a single Member State the rule is not uniformly applicable or enforced may well provide a In those circumstances the Court reached cause for action under national law, but not the conclusion that, although the strictest under Community law. rule was applied to imported goods, the legislation in question

OPINION OF MR VAN GERVEN —CASE C-145/88

Proposed reply to the preliminary questions

34. In conclusion, I propose that the Court should reply to the preliminary questions asked by Cwmbran Magistrates' Court as follows:

'A national rule which prohibits retail premises from being open on Sunday for the sale of goods to customers, save in respect of certain specified items, is not covered by the prohibition laid down in Article 30 if the rule does not cause imported goods tobe discriminated against or placed at an actual disadvantage compared with domestic goods and if it does not screen off the domestic market of the Member State in question or make access to that market substantially more difficult or unattractive for imported goods to which the rule applies.'

In the event that the Court should nevertheless decide that such a rule is in principle a measure caught by Article 30, I propose in the alternative that the Court should answer the preliminary questions as follows:

'Articles 30 and 36 of the Treaty do not preclude a national rule which prohibits retail premises from being open on Sunday for the sale of goods to customers, save in respect of certain specified articles, if the rule does not cause imported goods to be discriminated against or placed at an actual disadvantage compared with domestic goods and if any obstacles to intra-Community trade which may be caused by the application of that prohibition are not greater than is necessary for encouraging non-working activities and social contacts on a specified day which is already devoted to those purposes by a large part of the population.'