Súdny dvor Európskej únie·22.11.1990

C-312/89

ECLI:EU:C:1990:418

Súd: Súdny dvor Európskej únie
IČS: 61989CC0312
Zdroj: eur-lex.europa.eu ↗

CONFORAMA AND OTHERS

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 22 November 1990 *

Mr President, sectors exhaustively listed in the Code du Members of the Court, Travail, for instance restaurants, hospitals, newspaper vendors and so on (see Article L.221-9 of the Code du Travail). Secondly, an exception may be made in the 1. The Tribunal de Grande Instance case of undertakings whose staff work in (Regional Court), Saint-Quentin, and the shifts; the application of that exception Cour d'Appel (Court of Appeal), Mons, depends in principle on the conclusion of a have submitted to the Court a number of collective labour agreement (see Articles questions for a preliminary ruling on the L.221-5-1 and L.221-10 of the Code du compatibility with Community law of a rule Travail). Finally, temporary derogations of national law prohibiting the employment may be granted on request by a local of workers on Sundays. In view of the simi authority (see Articles L.221-6, L.221-7 and larity between the rules of national law L.221-19 of the Code du Travail). referred to in the disputes in the main proceedings, and also having regard to the fact that the two references raise largely the same questions of Community law, I shall deal with both cases in a single Opinion. It does not appear to be disputed that the defendants in the main proceedings are not entitled to the application of any of those Background exceptions. However, they have opposed the plaintiff's claim on the ground that the prohibition on the employment of workers on Sundays introduced by the Code du 2. In the main proceedings in Case Travail must be regarded as contrary to C-312/89, the Union Départementale des Articles 30 and 85 of the EEC Treaty. The Syndicats CGT de l'Aisne seeks an national court, the Tribunal de Grande injunction restraining Conforama, which Instance, Saint-Quentin, has agreed to refer sells furniture and household equipment, to the Court for a preliminary ruling a from opening its shops on Sundays, subject question which, however, is limited to the to a fine for contravention. The claim is interpretation of Article 30 of the EEC based on a certain provisions of Chapter 1 Treaty. That question is worded as follows: of Title II of the French Code du Travail (Labour Code), according to which the weekly rest day for workers must in principle be granted to them on Sunday (see Article L.221-5 in conjunction with Articles L.221-2 and L.221-4). There are three kinds 'Can the concept of "measures having equi of exceptions to that fundamental rule. First, valent effect" to quantitative restrictions on the prohibition is waived in a number of imports contained in Article 30 of the EEC

* Original language. Dutch

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Treaty be applied to a general provision Correctionnel (Criminal Court), Charleroi, whose effect is to prohibit Sunday working which sentenced them on 1 July 1988 to for employees, inter alia in a sector such as payment of a fine with terms of furniture retailing, when imprisonment in the alternative for committing an offence contrary to the Belgian Loi sur le Travail (Labour Law) of 16 March 1971; the appeal lodged against that judgment is pending before the national (1) that sector deals to a large extent in court, the Cour d'Appel, Mons. products imported, inter alia, from Member States of the EEC;

(2) a considerable proportion of the sales of Article 11 of the Loi sur le Travail prohibits undertakings in that sector is made on the employment of workers on Sundays. Sundays in cases where those under Once again, there are several exceptions. takings have taken the step of Article 3(1) of that law excludes certain contravening the provisions of national categories of workers (including persons law; employed by the State, persons working in a family business and fishermen) from the scope of the prohibition. Further exceptions are set out in Article 12 et seq. of the law and apply, amongst other things, to the (3) closure on Sundays has the effect of supervision, cleaning and maintenance of reducing the volume of sales effected business premises, to shift work and so on. and thus the volume of imports from Article 13 of the law provides that a list may Member States of the Community; and, be drawn up by royal decree of under finally, takings in which, and of tasks for which, workers may be employed on Sundays. Retail shops whose staff may not, on the basis of that list, work on Sundays are auth orized by Article 14(1) of the law to employ (4) the obligation to allow employees their their workers on Sundays from 8 a.m. to weekly rest period on Sundays does not twelve noon. apply in all the Member States?

If so, can the characteristics of the sector in question be regarded as meeting the criteria More specifically, the defendants in the set out in Article 36 of the EEC Treaty?' main proceedings are charged with employing workers on Sunday after twelve noon, contrary to the last-mentioned provision. In the proceedings before the Cour d'Appel, the defendants maintain that 3. The first defendant in the second case, the prohibition in question is incompatible C-332/89, is managing director of Trafitex with both the provisions of the EEC Treaty SA, a company which runs a department on the free movement of goods and services store managed by the second defendant. and Article 85 of the Treaty. Taking the They were prosecuted before the Tribunal view that the defendants' arguments do not

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at first sight appear to be entirely devoid of 'Article 30 of the Treaty must be interpreted substance, the national court has submitted as meaning that the prohibition which it lays the following question to the Court of down does not apply to national rules Justice for a preliminary ruling. prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may- result therefrom do not exceed the effects 'Are Articles 1,11, 14(1), 53, 54, 57, 58 and intrinsic to rules of that kind.' 59 of the Law of 16 March 1971, as amended in particular by the Law of 20 July 1978 and by Royal Decree No 15 of 23 October 1978, contrary to Articles 3(0, 5, 30 to 36, 59 to 66 and 85 of the Treaty of Rome of 25 March 1957?' 5. Before considering that judgment in greater detail, I should like to draw attention to the similarity between the That question must be understood as national legislation which forms the subject- seeking from the Court a ruling on the matter of the reference in Case C-145/88 interpretation of the aforesaid Treaty and that which forms the subject-matter of provisions so as to enable the national court the reference in the cases now before the to assess the compatibility with Community Court. law of the aforesaid provisions of national law. 1

The interpretation of Article 30 of the Treaty Whereas Case C-145/88 was concerned with a general prohibition on Sunday trading, these cases are concerned with a 4. The answer to be given to the questions prohibition on employing workers on for a preliminary ruling now before the Sundays. In my view that distinction is not Court concerning Article 30 of the Treaty of great importance: as regards the must be influenced to a large extent by the application of Article 30 of the Treaty the judgment of the Sixth Chamber of the effects on intra-Community trade resulting Court of 23 November 1989 in Case from the two types of legislation are very C-145/88, Torfaen Borough Council v similar. In Case C-145/88 the national court 2 B & Q PLC. The Cwmbran Magistrates' found that the ban on Sunday trading had Court, United Kingdom, had asked the led to a reduction in the total sales of the Court for a ruling on the question whether undertaking concerned, that approximately a national rule which in principle prohibited 10% of the goods sold by that undertaking the sale of goods on Sundays was to be came from other Member States and that a regarded as contrary to Article 30 of the corresponding reduction of imports from EEC Treaty. The Court ruled as follows: other Member States would therefore ensue. In the present cases, the national courts 1 — See the judgment of 20 April 1988 m Case 204/87 Bekaert would seem to be confronted with a similar [1988] ECR 2029, at paragraph 5. and the judgment or 7 March 1990 in Case C-69/88 Kranu \ Ontvanger der pattern of facts. In the question submitted to Direcle Belastingen [1990] ECR I-583- at paragraphs 7 and the Court in Case C-312/89, mention is 2 — [1989] ECR 3851 expressly made of three findings of fact by

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the national court: the defendants operate in which may be relied upon to justify them a sector that deals to a large extent in between the legislation which was the products imported from other Member subject-matter of the judgment in Case States of the EEC, a considerable C-145/88 and that at issue in the present proportion of the sales of undertakings in cases. The relevance of the judgment given that sector is made on Sundays, and closure in the former case is, for that reason, all the on Sundays has the effect of reducing the greater. volume of sales effected and thus the volume of imports from other Member States.

6. In the B & Q judgment, the Court pointed out that the contested legislation was applicable to imported and domestic The order for reference in Case C-332/89 products alike (paragraph 11). It should be does not contain any comparable findings, noted that the legislation concerned was but it appears from the documents before applicable without distinction not only the Court that an expert's report was formally but substantively as well: it was commissioned by the Tribunal Correc apparent from the order for reference that tionnel, Charleroi, which shows that the production or marketing of imported between September 1986 and December goods was not rendered more difficult than 1987 approximately 22% of the under that of domestic goods. Referring to the taking's turnover was made on Sundays and judgment in Cinéthèque, 5the Court stated that if Sunday rather than Tuesday were that the compatibility with Community law designated as the weekly closing day a loss of such legislation, neutral with regard to of turnover amounting to approximately 3 imported and domestic goods, depended on 13% would ensue. I also assume that, a twofold examination, namely whether the according to the finding made by the legislation pursues an objective which is national court, the loss of turnover also justified with regard to Community law and related to products imported from other whether the obstacle to Community trade Member States. Otherwise this would be a created by such legislation exceeds what is situation which, in the absence of any cross- necessary for the attainment of the objective frontier factor, would fall entirely within the in view (see paragraph 12 of the internal sphere of a Member State, to which 6 4 judgment). The Court thereby Article 30 is inapplicable. acknowledged implicitly but unequivocally that the measure concerned was at first sight covered by the expression used in the Dassonville judgment, that is to say it was to be regarded as a 'trading rule .. . capable of As will become apparent, moreover, there is hindering, directly or indirectly, actually or 7 a strong similarity as regards the grounds potentially, intra-Community trade'.

3 5 — Judgment of 11 July 1985 in Joined Cases 60 and 61/84 — See Annex 2 to the observations of the defendants in the main proceedings. Cinétbèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, in particular at paragraph 22. 4 — That principle was laid down by the Court in general terms (albeit in connection with freedom of establishment) 6 — This wording is more precise, in my view, than that in its judgment of 8 December 1987 in Case 20/87 referred to in the operative partof the judgment, quoted in Ministère Public v Cauchará [1987] ECR 4879, at para paragraph 4 above, in which there is no reference to 'what graphs 11 and 12; see also, for a recent application of that is necessary' but only to the 'effects' intrinsic to rules of principle in connection with the freedom to provide that kind. The criterion of 'necessity' has a normative services, the judgment of 3 October 1990 in Joined Cases content which the 'effects' criterion lacks. C-54/88, C-91/88 and C-14/89 Nino [1990] ECR 3537, at 7 — Judgment of 11 July 1974 in Case 8/74 Procureur du Roi v paragraphs 10 and 11. Dassonville [1974] ECR 837, at paragraph 5.

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I should like to raise two points in that single trader is in principle caught by the regard. In my Opinion in Case C-145/88 I Dassonville criterion, or at least that the proposed that the scope of the expression existence of such a possibility is considered used in Dassonville should be slightly sufficient to prompt the Court to examine curtailed and that with regard to whether there is any justification under commercial legislation applicable to Articles 30 or 36 ." It is only when it does imported and domestic products alike the not impede the marketing of the product criterion of partitioning of the market which concerned at the level relevant for the l2 is used in competition cases should be purposes of intra-Community trade , leaves 8 applied. In its judgment the Court did not other methods of marketing the same 13 take up that suggestion, implicitly preferring product intact, or allows the product to be the Dassonville criterion in its broad terms, marketed without impediment through M which it took as a point of departure. alternative circuits that legislation does 15 Should the Court wish to take a different not fall within Article 30. approach in this case, I would refer it to my Opinion in the B & Q case. I am now proceeding on the assumption that the Court has opted in favour of the Dassonville rule once and for all and I therefore take 7. Since in the B & Q judgment the Court that rule as my point of departure in this acknowledged that the prohibition in Article Opinion. This does not mean that the parti 30 was applicable in principle to a rule tioning of the market which may result from prohibiting retailers from opening their national legislation is not something which premises on Sunday, it follows, in the light can and indeed must be taken into account of the similarity established earlier (see when it is necessary, in determining whether paragraph 5 above), that the same a given obstacle exceeds what is necessary, conclusion must be drawn with regard to to compare the effect and purpose of the the prohibitions on Sunday working in the legislation examined (see paragraph 12 cases now before the Court, at least where below). in each of those cases the national court has established that the legislation was poten-

9 — That would not be the case here if it became apparent that in the case of the product concerned the trader made good on other days of the week the loss of turnover resulting from the prohibition on Sunday working. A further point relates to the consequences 10 — See the judgment of 16 May 1989 in Case 382/87 Buet v Ministère Public [19891 ECR 1235, at paragraphs 7 to 9, as of the Dassonville criterion for the national well as the B & Q judgment. court. Although it is in principle for the 11 — That is clearly the case in B & Q, where the existence of national court to determine whether the a justification is sought in the light of the possible effects on Community trade which may result from the national rules national legislation in question is in fact under examination; see the operative part of the judgment. capable of hindering intra-Community trade 12 — Judgment of 14 July 1981 in Case 155/80 Oebel [1981] ECR 1993, at paragraphs 19 and 20. See also the judgment directly or indirectly, actually or potentially, of 25 November 1986 in Case H8 / 85 Direction Générale the Dassonville rule, to which the Court des Impôts v Forest [1986] ECR 3449, at paragraph 19. 13 — Judgment of 31 March 1982 in Case 75/81 Blesįen v adhered in B & Q, is so broad as to cover 1982]] ECR 1211 Belgium [ 1982 1211,, at paragraph 9. any legislation which contains a cross- 14 — See the judgment of 11 July 1990 in Case C-23 /89 C-23/ frontier element as regards its purpose or 1990]] ECR 3059 Quietlynn v Southend Borough Council [1990 3059,, at paragraph 11. 11. effect. It is apparent from the case-law of 15 — It is clear from the last two situations that the Court the Court that even legislation which can accepts that one trader's loss of turnover can be made up for by additional sales made by other traders in the same create an obstacle to imports in the case of a Member StateState.. In that regard the Court relies on simple possibilities resulting from the scope of the legislation examined (see see,, for instance instance,, paragraph 19 of the judgment 8 — Opinion delivered at the sitting on 29 June 1989, at para- in OebeĻ cited in footnote 12 ), without requiring statistical 12), graphs 13 to 15. evidence,, which in practice cannot easily be furnished evidence furnished..

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tially capable of restricting imports within given to them in the different Member the meaning of the Dassonville criterion. States.

More specifically, in connection with the Nevertheless, I cannot leave it at that, since national court's examination of the permissi I would thereby ignore an important matter bility of national legislation, this implies that to which the Commission has drawn sufficiently clear criteria are made available attention in its observations. In the B ôc Q to that court to enable it to ascertain judgment the Court states that the question whether national legislation is in conformity 18 whether the effects of specific national rules with Community law. In its case-law on in fact actually remain within the the free movement of goods the Court has 9 framework (as required by the judgment: steadfastly adhered to that principle, 1 and I see paragraph 6 above) of commercial legis would firmly recommend that it continue to lation which ex hypothesi is justified is a do so. question of fact to be determined by the national court (paragraph 16).

In the present cases, the need for precise criteria is admittedly not so great since, following the judgment in B ôc Q, the issue The Commission argues that the assessment can easily be resolved. Nevertheless, even in of the need for and proportionality of clear-cut cases it is still necessary to set the specific legislation cannot be left to the solution in a general context. Otherwise national courts, and the arguments which it there is a risk of creating an obscure line of advances in support of that view are in my cases of little assistance to the national opinion persuasive. Admittedly, it is not for courts. the Court to rule in proceedings under Article 177 of the Treaty on the validity of national legislation; nevertheless the Court has always emphasized that, in the interest of the cooperation with the national judicial 8. In my search for general criteria, I shall, authorities which that provision envisages, it in accordance with the reasoning followed is empowered to set out the elements of by the Court in B & Q, first consider when Community law which will enable the it can be said that national legislation which, national court to give judgment on the dispute before it in accordance with the 17 — See, for instance, the judgment of 20 September 1990 in 1 Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] rules of Community law. 6Only in that way ECR 3461, at paragraph 11. is it possible to safeguard the main purpose 18 — In that respect the B & Q judgment leaves more than one of the preliminary ruling procedure, namely question unanswered, as is illustrated by the reference in Case C-304/90 which has just been lodged at the Registry, to ensure the uniform application in the in which the Reading and Sonning Magistrates' Court asks a series of detailed questions on the interpretation of that Community of the provisions of Community judgment and, in particular, the application of the criterion law in order to prevent their effects from of proportionality (see the second question submitted for a preliminary ruling in that case). varying according to the interpretation 19 — See, for instance, the judgment of 11 July 1985 in Ciné- théque, already referred to in footnote 5, at paragraphs 22 and 23, and the judgment of 14 July 1988 in Case 407/85 16 — Sec, for instance, the judgments of 13 March 1984 in Case 3 Glocken v USL Centro-Sud [1988] ECR 4233, at para 16/83 Prantl [1984] ECR 1299, and of 14 October 1980 in graphs 12 to 27. Sec also the judgment of 7 March 1990 in Case 812/79 Attorney General v Burgoa [1980] ECR 2787, Case C-362/88 GB-InnO-BM v Conféderation du especially at paragraph 13. Commerce Luxembourgeois [1990] ECR I-667.

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like that now before the Court, is entirely The protection of the working environment neutral with regard to imported products (expressly referred to in Article 100a of the and domestic products, pursues an objective EEC Treaty) and the related interest of which is justified by Community law, and workers' welfare can undoubtedly be then consider in further detail the question regarded as a mandatory requirement. whether any obstacles to trade which may However, neither of those requirements is be caused by the legislation exceed what is sufficient in itself because, as the defendants necessary in order to achieve the objective in Case C-312/89 state, they do not provide pursued. a sufficient justification of the duty imposed on employers to grant the weekly rest day on one and the same day, namely on That presupposes a threefold examination, Sunday. A rule which prohibits the namely to ascertain whether or not the employment of workers on Sundays can be purpose of the legislation is justified justified only if it is compatible with (paragraphs 9 to 11 below), to ascertain the Community law for a Member State to opt nature of the obstacles created by the legis for a prohibition on Sunday working or lation (paragraph 12), and finally to Sunday trading in order to enable its ascertain the need for those obstacles citizens as far as possible to enjoy the same (paragraphs 13 and 14). day of rest, thereby enabling them freely to pursue all kinds of non-occupational (such as family, religious, cultural and sports) 9. Let us begin with the question whether activities together. This means, however, the legislation under consideration pursues that a fresh justification is added to the list an objective justified by Community law. In of mandatory requirements. the observations submitted to the Court no attempt whatsoever is made to justify the legislation by reference to any one of the grounds listed in Article 36. Nor does the Court do so in the B & Q judgment. Rightly so, in my view, since the sole 10. In that respect the B & Q judgment ground which can reasonably be taken into illustrates a remarkable trend. It refers first account is the protection of public health. to the 1981 judgment in Oebel, 22 in which Admittedly, the prohibition on the the Court stated — albeit not directly in employment of workers on Sundays safe connection with the assessment of a possible guards a day of rest for workers, and conse justification — that a German prohibition quently promotes the 'health ... of humans', on working in the bakery industry before but it is nevertheless directed at another 4.00 a.m. objective, as specified below, in precisely the same way as a prohibition on Sunday 20 trading imposed on self-employed traders.

The position is different as regards the ' .. . in itself constitutes a legitimate element 'mandatory requirements' recognized by the 21 of economic and social policy, consistent Court in the Cassis de Dijon judgment. with the objectives of public interest pursued by the Treaty. Indeed, this prohibition is 20 — If ils purpose is the protection of the health of humans, there is no justification for requiring the compulsory day designed to improve working conditions in of rest to be taken on the same day: see below. a manifestly sensitive industry, in which the 21 — Introduced by the ludgment of 20 February 1979 in Case 120/78 Rewe Zentrale v Bundesmonopolverwaltung fur Branntwein [1979J ECR 649, at paragraph 8. 22 — Judgment of 14 July 1981, supra, footnote 12

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production process exhibits particular instance, be described as: all national legis characteristics resulting from both the lation whose enactment entails political, nature of the product and the habits of cultural or socio-economic policy choices consumers' (paragraph 12). which are in keeping with the objectives in the general interest pursued by the Treaty (such as those referred to in Article 100a) or is appropriate to specific national or regional socio-cultural or other features Proceeding on that basis in the B & Q which, in the present state of Community judgment, this time in connection with the law, are to be assessed by the Member assessment of a justification, the Court States. stated that:

The crux of the matter — if the broad rule 'The same consideration must apply as laid down by the Court in Dassonville is regards national rules governing the taken as a point of departure — is the need opening hours of retail premises. Such rules to classify the numerous potential justifi reflect certain political and economic cations as far as possible under a general but choices in so far as their purpose is to exhaustive rubric. It is clear from the ensure that working and non-working hours attempt made in the preceding paragraph are so arranged as to accord with national that such a rubric cannot, in view of the or regional socio-cultural characteristics, vague concepts which it expresses, provide a and that, in the present state of Community firm line of action. Nevertheless, it can, to law, is a matter for the Member States some extent, serve as a rough guide. It is 23 (paragraph 14). clear, for instance, that the designation of Sunday as a general day of rest falls under that rubric, as the Court indeed indicated in the B S &Q judgment: the imposition of at least one weekly rest day is undoubtedly a In that and other judgments, 24 it is possible policy choice directed at the protection of to detect a readiness on the part of the the working environment and of the health Court to recognize, alongside the 'classic' of humans, which are objectives recognized justifying grounds based on the Cassis de by the Treaty. The designation of Sunday as Dijon doctrine (such as the protection of the day of rest is a choice suited to the consumers, fair trading and, in conjunction specific socio-cultural characteristics of the with those two grounds, the pursuit of Member State in question. market transparency, the effectiveness of fiscal supervision, and the protection of the environment and the working environment), some of which have now been incorporated in Article 100a of the Treaty, further 11. The difficulty of establishing an entirely 'mandatory requirements' and to classify conclusive general guideline with regard to them, with or without the existing ones, justifying grounds makes it all the more under a single rubric. This might, for important to maintain a proper division of tasks between the national courts and the 23 — See also the remainder of this passage, in paragraph 12 Court of Justice. To be sure, it is first and below. 24 — See, inter alia, the judgment of 11 July 1985 in Cinéthèque, foremost for the national court to assess the cited in footnote 5 above. conformity with Community law of specific

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national legislation and to ascertain whether pretation which national courts must take it falls within one of the grounds of justifi into account. cation, but in so doing it must take into account the case-law of the Court. This means, in my view, that where a justifi cation relied upon before the national court in relation to national legislation is not linked to one of the grounds already expressly referred to by the Court, the In that regard, it is important first of all to national court ought to submit a question to determine that the national legislation in the former for a preliminary ruling. It is question is applicable without distinction to then for the Court to determine whether a imported and domestic products and that it new justification which has been relied upon does not render the marketing of imported is acceptable. products more difficult than that of domestic products. If the national legislation is not discriminatory either in formal or substantive terms, the next step is to ascertain whether it is 'designed to govern the patterns of trade between Member 25 States'. That cannot be said of legislation If the answer is in the affirmative, it is then which imposes a restriction on opening a matter for the national court to ascertain hours for shops or on the employment of whether the national legislation, as inter workers on Sundays — that is to say, preted and applied, actually pursues the concerns rules which govern the exercise of intended objective which the Court has a commercial activity and are not aimed at a acknowledged is in keeping with the Treaty, specific product. Nevertheless, it is still or whether it is used for another purpose. necessary to ascertain whether the legis Hence it is also for the national court to lation may have an 'unintended' effect on assess whether any action is to be taken on intra-Community trade in the broad sense complaints such as those of the defendants of the term as used by the Court in in the main proceedings concerning the Dassonville. That would undoubtedly be the inconsistency and the sporadic or uneven case if the legislation were to hinder in one application of the legislation under way or another interpénétration between the consideration. If such application leaves domestic markets within the Common intact the justification for the legislation Market — for instance, if it had the effect according to Community law, it is not for of raising barriers within a Member State so the Court to rule on that legislation. as to render access to the domestic market more difficult (more expensive) or less attractive (unprofitable) to producers of, or dealers, in goods from other Member 26 States. Once again, that cannot normally

25 — See the B & Q judgment, cited above, at paragraph 14, final sentence That expression can also be found in other 12. If the national legislation in question judgments: sec, for instance, the Qureitlynn judgment, cited falls within a ground of justification, the in footnote 14, at paragraph 11. the Krantz judgment, cited in footnote 1, at paragraph 11, and the Cinetbèque next step is to examine the nature and ludgment, cued in footnote 5, at paragraph 21 (in which u was stated that this was the case with regard to any system extent of the obstacles created by it. It may applicable without distinction to domestic and imponed be seen from the Court's case-law that in products).

that respect too the Court lays down 26 — For more details on that point, see my Opinion in Case C-145/88, referred to in footnote 8, at paragraphs 17 to guidelines in response to questions of inter

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be said of legislation which prohibits factual situation, 28 the two concepts are not Sunday trading or Sunday working. co-extensive. The requirement of necessity has two aspects: first of all that the national legislation in question is in fact relevant for the attainment of the objective pursued — in other words, that there is at least potentially a causal connection between the two; secondly, that there is no alternative to such 13 .The extent to which it can be concluded legislation which is equally effective but less that legislation, in the terms of the B & Q restrictive of intra-Community trade (the judgment (paragraph 12), does 'not exceed criterion of the least restrictive alternative). what [is] necessary in order to ensure the The criterion of proportionality, on the attainment of the objective in view' (which other hand, is to be understood as meaning is ex hypothesi justified with regard to that even if legislation is relevant and is the Community law), will depend on the extent least restrictive of trade, it is nevertheless to which the examination of the effects of incompatible with Article 30 (and must the legislation reveals the existence of a therefore be repealed or replaced by a less serious obstacle to intra-Community trade. effective measure) where the obstacle which Thus legislation which clearly has the effect it creates to intra-Community trade is out of of partitioning the market, even if it is not proportion to the objective pursued. designed to govern patterns of trade between Member States, clearly goes far beyond what is strictly necessary in order to

27 achieve the objective pursued. However, legislation of the kind at issue in these cases, which is not designed to govern patterns of trade between Member States or to partition the market, can easily be regarded as In my view, the criterion applied by the remaining within the limits of what is Court in the B & Q judgment, according necessary. to which an obstacle to intra-Community trade may not exceed what is necessary for the attainment of the objective pursued, reflects both aspects of the criterion of necessity: the restrictive national legislation is relevant with regard to the objective pursued, since it is necessary for the

14. That brings us to the classic attainment of that objective and has requirements of necessity and propor therefore been enacted with that end in tionality applied by the Court. Although view; the legislation may not go beyond those two requirements are frequently what is necessary for the attainment of that examined at the same time in the judgments objective, which implies that a less restrictive of the Court, as part of an analysis which alternative is not available. However, the adheres closely to the specific legal and criterion of proportionality is not incor porated in that, since on the basis of that criterion legislation which is necessary for 17 — It might well be regarded as a 'disguised restriction on trade between Member States' within the meaning of the last sentence of Article 36 of the Treaty, in which case none of the justifications under Article 30 or Article 36 can 28 — See, for instance, che judgment of 20 May 1976 in Case be relied upon. See the judgment of 3 December 1981 in 104/75 De Peijper [19761 ECR 613, at paragraphs 21 and Case 1/81 Pfizer v Euńm-Pharm [1981] ECR 2913, in 22, and the judgment of 8 February 1983 in Case 124/81 which the Court considered that Article 36 prohibited the Commission v United Kingdom [1983] ECR 203, at use of a trade mark so as to create an artificial partitioning paragraph 16. See also the judgment in Buet, cited in of the markets within the Community (see also the Opinion footnote 10, at paragraphs 11, 12 and 15. of Mr Advocate General Capotoni in that case, in 29 ·— See also my Opinion in Case C-169/89 Gourmetterie van particular at p. 2935). den Burg [1990] ECR 2143, at paragraph 8 et seil.

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the attainment of the objective in question, reference for a preliminary ruling. 0 In case and therefore does not exceed what is of doubt, therefore, a national court can necessary, must nevertheless be set aside by submit a question to the Court for a the Member State. preliminary ruling.

Does this mean that in the B & Q 15. Applying the foregoing considerations judgment the Court abandoned the criterion in relation to the interpretation of Article 30 of proportionately and thus went back on its of the Treaty to the national legislation earlier case-law? I think not: in Case before the Court, I come to the conclusion C-145/88 the Court had no need to rely on (a) that legislation imposing a (limited) the criterion of proportionality — any more prohibition on Sunday working of the kind than it does in these cases — since it was at issue here may, according to the findings immediately apparent, as it is now in these made by the national court, affect trade proceedings, that the obstacles created by between Member States in the broad sense the national legislation in question certainly of the term as used in the Dassonville were not, and are not, of such a kind as to judgment; (b) that the objective pursued by compel the Member State to dispense with a that legislation, namely the designation of a measure necessary for the attainment of a single day of rest for employees, Sunday, justified objective. If, on the other hand, the may be regarded as a legitimate objective obstacle is of such a kind as to jeopardize under Community law; (c) that the legis the integration of the market, it may lation at issue, which is neutral in relation to seriously be doubted whether it is still imports, is not designed to govern patterns proportionate to the in itself legitimate of trade between Member States, and, again objective pursued by the measure. Hence I in the light of the findings made by the take the view that the absence of any national courts, the obstacles to intra- reference to the criterion of proportionality Community trade resulting therefrom are in the B & Q judgment is not of funda not of such a kind as to jeopardize the inte mental importance and that the reason for gration of the market; (d) that in those the omission lay in the specific circum circumstances it cannot be concluded that stances of the case, from which it was clear the obstacles created exceed what is that any obstacles which might be created necessary for the attainment of the objective were not particularly serious. pursued, or that they are out of proportion thereto.

For the sake of completeness, I should point out that it is the Court itself which weighs the objective and the obstacle, on the basis Accordingly, I consider that the national of both the criterion of necessity and the legislation in question is compatible with criterion of proportionality, in interpreting Article 30. Article 30 or Anicie 36 in relation to specific national legislation described in a 30 — Sec the case-law cited infootnote 19

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The interpretation of Article 34 of the That ruling, which has been followed by the Treaty 3 Court in later judgments, 1 precludes commercial legislation applicable to products without distinction (in other words legislation which does not have as its specific object or effect the restriction of 16. In the order for reference in Case exports) from being considered incompatible 332/89 the Court has also been requested to with Article 34. That must also hold true for give a ruling on the interpretation of Article legislation of the kind now before the 34 in connection with a prohibition on the Court, which is applicable to products employment of workers on Sundays. The without distinction. As we have seen, it is question is thus whether such a prohibition not designed to govern patterns of trade can be regarded as a quantitative restriction between Member States, and there is no on exports which is incompatible with the evidence that it renders the production or Treaty. marketing of goods intended for export more difficult than that of goods intended for the domestic market.

In order to answer that question it is sufficient to refer to the established case-law The interpretation of Article 59 et seq. of of the Court concerning Article 34 of the the Treaty Treaty. In its judgment in Case 15/79 Groenveld v Produktschap voor Vee en Vlees, the Court stated as follows: 17. Article 59 et seq. of the Treaty concern the freedom to provide services, and in its order for reference in Case C-332/89 the national court asks whether those provisions preclude a prohibition on the employment 'That provision [Article 34] concerns of workers on Sundays. national measures which have as their specific object or effect the restriction of patterns of exports and thereby the estab lishment of a difference in treatment The answer to that question must, in my between the domestic trade of a Member view, be deduced from the first paragraph State and its export trade in such a way as of Article 60 of the Treaty, which provides to provide a particular advantage for as follows: national production or for the domestic market of the State in question at the expense of the production or of the trade of other Member States. This is not so in the 'Services shall be considered to be "services" case of a prohibition like that in question within the meaning of this Treaty where [forbidding a manufacturer of processed they are normally provided for meat products from having in stock or remuneration, in so far as they are not processing horsemeat] which is applied objectively to the production of goods of a 31 — See, for instance, in addition to the Oebel judgment (cited certain kind without drawing a distinction above in footnote 12), the judgment of 15 December 1982 depending on whether such goods are in Case 286/81 Oosthoek [1982] ECR 4575, the judgment of 10 March 1983 in Case 172/82 Fabricants Raffineurs intended for the national market or for d'Huile de Graissage v Inter-Huiles [1983] ECR 555, and the judgment of 7 February 1984 in Case 237/82 Jongeneel export' (paragraph 7). Kaas vNetherlands [1984] ECR 483.

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governed by the provisions relating to freedom do not deal with a disruption of competition of movement for goods, capital and persons of that kind: those provisions are indeed (emphasis added). concerned with the maintenance of compe tition within the Common Market, but they impose a prohibition on agreements, Since in this case it must be assumed, on the decisions or concerted practices between basis of the judgment in Case C-145/88, undertakings which distort competition. that the legislation in question is commercial There would not appear to be any question legislation falling within the scope of Article of agreements, decisions or concerted 30, the provisions on the freedom to provide practices in the situation before the national services are not applicable to it. court.

The interpretation of Articles 3(f), 5 and 85 The Court has admittedly held that it of the Treaty follows from the combined provisions of Articles 3(f), 5 and 85 of the EEC Treaty that the principles laid down in Article 85 18. Finally, it remains for me to consider must also be complied with by the Member whether the competition rules in the Treaty States. More specifically, the Court has held can be applied to legislation of the kind at that the Member States are under a duty issue. The defendants in the main not to adopt or maintain in force any proceedings have raised this question in measures which could deprive Article 85 of both cases. Only the national court in Case its effectiveness. That would be the case, in C-332/89 has submitted that question to the particular, if a Member State encouraged Court, apparently on the basis of the the conclusion of agreements, decisions or defendants' argument that the legislation concerted practices contrary to Article 85 or 32 complained of ‘distorts competition’ and reinforced their effects. However, there is that by enacting or maintaining it a Member no evidence whatsoever in the documents State is in breach of the rules of competition before the Court that this is so with regard in the Treaty. However, Articles 3(f) and 85 to the legislation at issue.

Conclusion

19. On the basis of the foregoing considerations, I suggest that the Court answer the questions referred to it for a preliminary ruling as follows:

32 — See, for instance, the judgment of 1 October 1987 in Case 311/85 Vereniging van Vlaamse Reisbureaus v Sociale Dienst van de Plaatselijke en Gewestelijke Overbeidsdiensten [1987] ECR 3801, in particular at paragraphs 9 and 10.

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'In Case C-312/89

Articles 30 and 36 of the EEC Treaty must be interpreted as meaning that the prohibition laid down therein does not preclude national legislation which forbids the employment of workers on Sundays where that legislation, which is not designed to govern patterns of trade between Member States, does not render the marketing of imported goods more difficult than that of domestic goods or render the market less accessible to imported goods. In such a case, any restrictive effects on intra-Community trade resulting from that legislation do not exceed what is necessary for the attainment of the objective pursued by it and are not out of proportion to that objective.

In Case C-332/89

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