C-69/93

PUNTA CASA AND PPV

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 23 March 1994 *

Mr President, Article 10 of that Law provides for adminis­ Members of the Court, trative penalties in the event of breach of the statutory provisions. Repeated infringement, moreover, can lead to compulsory closure of a business for up to 15 days.

1. These joined cases are concerned with two references from the Pretura Circondari­ ale di Roma, Castelnuovo di Porto Division, for a preliminary ruling on the compatibility of Italian Law No 558 of 28 July 1971 1 with Articles 30 to 36 of the EC Treaty. 3. Law No 558 provides for derogations ratione materiae, rattorte loci and rattorte temporis. Ratione materiae, shops which sell monopoly goods, newsagents and motorway petrol stations are not covered by the prohi­ The Italian rules on the closure of shops bition laid down by law, whilst restaurants 2 and patisseries may be exempted. Flowers may be sold in the morning on Sundays and on public holidays that occur during the 3 week, while bakeries may also open in the 4 morning on those public holidays.

2. Law No 558 regulates business opening times. Article 1(2)(a) of that Law provides for compulsory closure on Sundays and pub­ lic holidays. Article 2 extends that prohibi­ tion to 'neighbourhood markets, street trad­ ing from habitual premises and, in general, Ratione loci, on Sundays and public holidays any trading from fixed premises or by itiner­ markets may be organized and businesses ant traders'. may open in municipalities 'in which street

2 — Article 6(1) and (2) of Law No 558. * Original language: Dutch. 3 — Article 6(3). 1 — Published in the Official Journal of the Italian Republic No 200 of 9 August 1971. 4 — Article 1(2)(a).

4. Law No 558 is a framework law which leaves the implementation of the above prin­ ciples to the authorities of individual regions. Detailed provisions concerning business Promozioni Polivalenti Venete Soc. coop, ari opening times are laid down in regional laws (hereinafter 'PPV') operates a shopping or decisions, such as Laws No 58/1971 and centre — which, in view of its dimensions, is No 37/1978 of the Lazio Region and Deci­ claimed to be the largest of its kind in Italy sion No 839 of 10 October 1983 of the — in Torri di Quartesolo (some 6 kilometres Veneto Region, which are at issue in this from Vicenza), in an area whose economy is based on tourism. Approximately 100 retail outlets are located within that shopping centre. Notwithstanding the fact that 5 — Artice 2(1) and (3). practically all those shops are closed on 6 — Article 3. 7 — Article 6(1). Sundays, attendance on that day is, 8 — In particular, they may decide that groceries may open in the according to the Pretura, approximately one- morning on the public holiday which is best suited for that purpose (see Article 1(2)(d] . quarter of the total numbers recorded in the 9 — Article 4. other six days of the week together. By letter

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PUNTA CASA AND PPV

of 10 March 1993 to the mayor of Torri di produced in other Member States of the Quartesolo, PPV 'claimed that it was Community, with a consequent reduc­ entitled' to open on Sundays and public tion in the volume of imports from such holidays. In reply to that letter, the mayor States, constitute: threatened to impose the penalties provided for in Law No 558 and in Decision No 839 of the Veneto Region.

(the category to which the suggests in its questions and in the grounds applicant belongs) on average of the order for reference that the Italian sell a greaterquantity of products legislation (a) may lead to a fall in imports of imported from other Member products from other Member States and (b) States than that sold by small is not based on social grounds since it does and medium-sized traders; not prohibit working on Sundays and public holidays. In addition, it emphasizes that the legislation in question (c) affects large stores more severely than other categories of trad­ ers. — the turnover achieved by large- scale distributors and organized distribution centres on Sundays cannot be compensated for by substitute purchases by custom­ ers on other days of the week, such purchases being made 8. I have already dealt with all the arguments within a commercial network put forward in the present case in my Opin­ which in general obtains its sup­ ion of 16 March 1994 in Joined Cases plies from domestic producers? C-401/92 (Tankstation 't Heukske V. O. F.) and C-402/92 (J. B. E. Boermans), judgment of 2 June 1994 [1994] ECR I-2199, I-2201. Those cases were also concerned with national legislation regulating business hours which was alleged to have an adverse effect 2. If the answer to Question 1 is in the on imports of products from other Member affirmative, does the national measure in States. There too, it was argued that the question fall within the derogations national legislation in question could not be from Article 30 provided for in Art­ justified on social grounds (because it did icle 36 of the Treaty of Rome, or other not prohibit working but only the sale of derogations provided for by Commu­ certain products) and that it affected some nity law?' traders more severely than others.

Finally, it can not be inferred from the mere fact that national legislation on the closure of shops does not apply in the same manner to all traders that such legislation is contrary to the Keck and Mithouard judgment in which 9. By way of reply to the three aforesaid the Court laid down the conditions for Art­ concerns (paragraph 7, above) specifically icle 30 of the EC Treaty to be inapplicable. referred to by the Pretura, I would lay Those conditions are that the national legis­ emphasis once again on the following points lation in question may not hinder access for in my Opinion of 16 March 1994. First of traders from other Member States to the all, it is apparent from the judgment in Keck market of the Member State which adopted and Mithouard that the fact that national the legislation any more than it hinders legislation may restrict the volume of sales of access for traders from that particular Mem­ products from other Member States is not 14 ber State, that according to its aim and its sufficient to characterize it as a measure wording the legislation must apply in the having equivalent effect to a quantitative 12 same manner to domestic and imported restriction on imports. products and that, viewed as a whole, also as regards its effects, it may not lead to unequal treatment of domestic and imported prod­ 15 ucts as regards access to the market. It is not apparent from any of the documents before the Court (or from the report of the Autorità Garante della Concorrenza e del Mercato, which Punto Casa and PPV have Furthermore, in the event of the inapplicabil­ annexed to their written observations) that ity of Article 30 of the EC Treaty to national legislation on the closure of shops, such as legislation, it is unnecessary to consider that under consideration, does not fulfil whether such legislation is justified by an those conditions or that, viewed as a whole, 13 overriding requirement. Accordingly, the it hinders intra-Community trade in any question whether the Italian legislation on other way.

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