OPINION OF ADVOCATE GENERAL

delivered on 25 January 1996 (*1)

1.In these cases the Court has been asked, in a series of orders from the Pretura Circondariale, Sezione Distaccata di Castelnuovo di Porto (District Magistrates' Court, Castelnuovo di Porto Division), Rome, to give a preliminary ruling on the interpretation of Articles 30, 36 and 52 of the Treaty, Council Directive 64/223/EEC of 25 February 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade (1) and Council Directives 83/189/EEC of 28 March 1983 (2) and 88/182/EEC of 22 March 1988 (3) laying down a procedure for the provision of information in the field of technical standards and regulations.

2.By order of 10 November 1993 the Court of Justice decided to join Cases C-418/93, C-419/93, C-420/93 and C-421/93. By another order of 27 January 1994 the Court decided to join the said cases with Cases C-460/93, C-461/93, C-462/93, C-464/93, C-9/94, C-10/94, C-ll/94, C-14/94 and C-15/94. In a subsequent order of 23 February 1994 the Court decided to join Cases C-23/94 and C-24/94. Lastly, by order of 19 October 1995 the Court decided to join the latter two cases, together with Case C-332/94, to all the other cases referred to above.

I — The disputed issue

3.The above references for a preliminary ruling were made in the course of appeals by various undertakings which operate large shopping centres against local mayors who, rejecting requests from the above undertakings, had refused to permit the opening of the centres on Sundays, warning them at the same time that if the prohibition was infringed they would be subject to the penalties laid down by law. That refusal by the mayors in question was based on Italian Law No 558 of 28 July 1971, (4) which regulates the opening hours of commercial premises. Article l(2)(a) thereof prohibits the opening of shops on Sundays and public holidays. In cases of infringement of the above provisions, Article 10 of the Law provides for administrative penalties. In cases of repeated infringement, it is possible to require the commercial premises to cease operating for up to 15 days.

4.Law No 558 above is a framework law which entrusts application of the above prohibition to regional bodies, which are responsible for laying down the detailed rules regulating the opening hours of shops at local level. Imposition of the penalties laid down by law is entrusted to the mayors or community leaders for the area in which the shops in question operate.

5.The appellants have questioned, before the Pretura, the compatibility of the Italian Law with Community law, in particular with the provisions referred to above. In the circumstances the Pretura decided to stay the proceedings and refer certain questions to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EC Treaty.

II — Questions referred for a preliminary ruling

6.In the context of the disputes set out above, by similar orders of 18 July 1993, 28 October 1993, 11 November 1993, 2 December 1993 and 16 December 1993, (5) the Pretura Circondariale di Roma, Sezione Distaccata di Castelnuovo di Porto, asked the Court of Justice to give a preliminary ruling on the following questions:

1.Does a provision of national law which (save for certain products) requires retail shops to close on Sundays and public holidays, but does not prohibit working in such shops on those days (and imposes the penalty of forced closure on shops in breach of that requirement), thus significantly reducing their sales, including sales of goods produced in other Member States of the Community, with a consequent reduction in the volume of imports from such States, constitute:

(a)a measure having an effect equivalent to a restriction on imports within the meaning of Article 30 of the Treaty of Rome and secondary rules of Community law adopted in pursuance of the principles laid down therein; or

(b)a means of arbitrary discrimination or a disguised restriction on trade between Member States; or

(c)a measure which is disproportionate and inappropriate to the socio-ethical aim pursued by the provision of national law; or

(d)an infringement of Article 52 of the EEC Treaty concerning freedom of establishment and of subsequent Community legislation enacted in implementation of that principle; or

2.If the answer to Question 1 is in the affirmative, does the national measure in question fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or other derogations provided for by Community law?

(e)an infringement of Article 2(2) of Directive 64/223/EEC concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade; or

(f)an infringement of Directives 83/189 and 88/182 concerning the elimination of technical barriers to trade between the Member States, in view of the fact that the prohibition on Sunday opening of shops is a general prohibition in appearance only, which is in fact subject to exemptions for a series of products which are, except in a very few unavoidable instances, exclusively of domestic origin?

Question 2

If the answer to the first question, in each of its parts, is in the affirmative, does the national measure fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or within other derogations provided for by Community law?

If we exclude Case C-332/94, in which the question referred to the Court refers to other Community provisions as well as to Articles 30 and 36 of the Treaty, the Court has already answered those questions in its judgment of 2 June 1994 Punto Casa and PPV. That judgment was delivered following a preliminary reference from the Pretura Circondariale di Roma (Sezione Distaccata di Castelnuovo di Porto), which, by orders of 16 December 1992 and 22 March 1993 had referred to the Court questions very similar to the above. After that judgment had been delivered, the Court asked the Pretura to clarify whether it wished to maintain the questions referred for a preliminary ruling in all the above cases apart from Case C-332/94.

In a letter of 22 July 1994, the Pretura replied that it wished to maintain the questions which it had referred to the Court. In that letter the Pretura argues that the Court's Punto Casa and PPV judgment does not cover all the aspects and issues arising from the cases before it with regard to the compatibility of the Italian Law with the provisions of Community law and, in particular, with Articles 30 and 36 of the Treaty. The Pretura explains that large shopping centres are mostly located on the periphery of, or outside, large towns, so that it is not easy for consumers to reach them on workdays. Compared with small shops, which arc widely scattered in the suburbs and cater for a limited consumer public, large shopping centres offer and sell, on average, much greater quantities of imported goods from other Member States than are offered by small shops which, as a rule, supply national products.

III — Replies to the questions referred to the Court

Articles 30 and 36 of the Treaty

The questions referred by the national court ask whether national legislation such as that at issue in the main proceedings falls within the scope of application of Article 30 of the Treaty. That article prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States. In accordance with the well-known formulation in Dassonville, ‘all trading rules which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’ are to be regarded as measures having an effect equivalent to quantitative restrictions. Furthermore, according to the case-law of the Court, commencing with the Cassis de Dijon judgment, national rules of a Member State may, even if they apply without distinction to all products, be contrary to Article 30 where they hinder intra-Community trade, unless their application can be justified by mandatory requirements relating to the public interest.

In the Keck and Mithouard judgment the Court restricted the scope of application of that case-law, distinguishing between

—on the one hand, restrictive national rules concerning the conditions (such as those relating to designation, form, size, weight, composition etc.) to which goods coming from other Member States, where they are lawfully manufactured and marketed, must conform;

—on the other hand, national provisions prohibiting or restricting certain selling arrangements which are not such as to hinder intra-Community trade, since they do not relate to the actual subject-matter of trade within the Community.

As regards the first category of national measures, the Court, referring to the above-cited Cassis de Dijon judgment held that such rules fall within the scope of application of Article 30 and constitute prohibited measures of equivalent effect unless their application can be justified by a public-interest objective. As to the second category of national measures, the Court considered that they fall outside the scope of application of Article 30 of the Treaty so long as they apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. According to the Court, provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products.

Apart, however, from those two categories, there is a third category of national measures which can fall under the Dassonville case-law, outside either of the above two categories. Examples of such measures are national legislation which authorizes the authorities to seize goods sold on instalment terms with reservation of title even if those goods are from a supplier established in another Member State who has title to the goods, national legislation prohibiting all vessels, regardless of the flag which they fly, from discharging harmful chemical substances into the territorial and internal waters of the State in question, and imposing the same prohibition on the high seas only on vessels flying the national flag, penalizing infringement by masters of vessels who are nationals of that State by suspending their professional qualification, the requirement of a licence to open a shop, and a national provision requiring those wishing to trade in petroleum products on an island territory of a Member State to supply a certain number of islands in that State. National measures in that category may not as a rule be regarded as contrary to Article 30 since they do not have as their object the regulation of trade with other Member States and any restrictive effects which they might have on the free movement of goods are usually too uncertain and indirect for the obligation they lay down to be regarded as being capable of hindering trade between Member States.

Thus when the question of the application of Article 30 is raised, it is necessary to examine which of the above categories covers the national measure at issue and in particular whether it is a selling arrangement within the meaning of Keck and Mithouard.

On that point it should be recalled that national measures such as that before the Court had already, prior to that judgment, been examined by the Court, which had thus had the opportunity to develop a considerable amount of case-law on that subject. In its decision in Torfaen Borough Council ν B&Q, the Court held that the prohibition laid down in Article 30 of the Treaty does not apply to national rules prohibiting retailers from opening their premises on Sundays where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind. The Court confirmed that position in its judgments in B&Q and Payless DIY and Others which, like the preceding judgment, concerned UK provisions prohibiting Sunday trading. Further related judgments are Conforama and Others and Marchandise and Others concerning measures (French and Belgian respectively) prohibiting the employment of staff on Sundays. In both those cases the Court held that Article 30 of the Treaty does not apply to measures of that type.

That approach was confirmed in cases following Keck and Mithouard. In its judgment of 2 June 1994 in Boermans,

which concerned Netherlands rules on the opening hours of petrol stations, and in its Punto Casa and PPV judgment which, as stated above, concerned the same provision of Italian Law No 558 as is at issue in these cases, prohibiting the opening of shops on Sundays and public holidays, the Court held that the measures in question are not covered by the prohibition in Article 30 of the Treaty. In those judgments the Court considered that the said measures of Netherlands and Italian law constitute selling arrangements which satisfy the conditions laid down in Keck and Mithouard. In particular, in Punto Casa and PPV, the Court stated that the legislation at issue ‘applies, irrespective of the origin of the products in question, to all the traders concerned and does not affect the marketing of products from other Member States any differently from the marketing of domestic products’.

13.Consequently, the question of the application of Article 30 of the Treaty to national rules prohibiting the opening of shops to certain hours or, as the measure at issue, to certain days of the week, has been resolved in the case-law.

In my view, too, such a measure is covered by Keck and Mithouard. The national legislation at issue does in fact constitute a selling arrangement within the meaning of that case-law. It is a measure concerning the conditions governing the time, place and method under which goods are sold to consumers. The rules prohibit certain categories of retailers from offering for sale specified products on certain days (Sundays and public holidays). They do not contain any provision relating to the internal or external characteristics of the products in question and do not create in the Member State where they are in force added production or marketing costs for products lawfully manufactured and marketed in other Member States, since they do not make it necessary to harmonize the internal or external characteristics of imported products. Consequently, since the rules at issue can be characterized as selling arrangements, they cannot be regarded as a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty unless the two conditions referred to in the above-cited decision in Keck and Mithouard are not satisfied.

14.As far as the first condition is concerned, it is clear that national rules such as those at issue do not make a distinction between domestic and foreign traders as regards access to the national market on the same terms. With regard to the second condition, it must be pointed out, first, that the rules in question do not have as their subject-matter the movement of goods between the Member State, and, secondly, that there is nothing to indicate that those rules could, taken as a whole, entail, from a legal point of view, unequal treatment between domestic and imported products as regards their access to the market, or lead in practice, in the normal course of events, to such treatment.

On that point it should be noted that national provisions restricting generally the marketing of a product and consequently its importation cannot on that basis alone be regarded as restricting the possibility of access for imported goods to the market to a greater extent than for similar domestic products. As the Court of Justice has held in Keck and Mithouard, the fact that national rules may restrict generally the volume of sales, and hence the volume of sales of products from other Member States, is not sufficient to characterize the legislation in question as a measure having equivalent effect to a quantitative restriction on imports. The existence of other circumstances which could lead to the rule being described as a measure having equivalent effect has not been established. The cases here examined are extremely similar to Cases C-69/93 and C-258/93 Punto Casa and PPV in which the abovementioned judgment was delivered, both on the facts and as regards the legal issues. It will be recalled that the formulation of the questions referred for a preliminary ruling is the same as that in Cases C-69/93 and C-258/93.

16.On 22 July 1994 the national court sent a letter to the Court in which it maintained the questions it had referred and set out a series of factors relating to the particular features of the functioning of shopping centres in Italy. In the light of those facts, the national court takes the view that the specific effects in practice of the rules in question on imported products coming from other Member States merit in-depth examination.

I consider that the factors referred to in the above letter and in the orders for reference do not confer a dimension on the facts that is any different from that in Joined Cases C-69/93 and C-258/93. Those two cases and the cases now before the Court all concern large out-of-town shopping centres selling inter alia goods coming from other Member States for which the prohibition against Sunday trading entails a reduction in the volume of sales of the products they market.

18.According to the Pretura's decision, the prohibition against the opening of shopping centres on Sundays diverts demand towards domestic products inasmuch as: (a) shopping centres offer to the consumer public more imported goods in comparison with small retail shops which primarily sell domestic products; (b) the consumer has easier access on working days to small shops than he has to out-of-town shopping centres. The linking, however, of shopping centres to foreign Community products is not certain and free of doubt. Apart from the fact that the defendants, in their observations, cast doubt on that link, in any case there are no statistics or other evidence to show that shopping centres such as those operated by the applicants sell more foreign than domestic products as compared with small and medium-sized retail shops, or that the products offered by shopping centres are bought by the consumer public mainly on Sundays and public holidays. At all events the restrictive effects which such a prohibition might have on imports are not at all obvious and would be only uncertain and indirect in character. It is incontrovertible that the prohibition of sales on Sundays restricts the volume of sales of goods generally. The existence, however, of a causal link between the restriction of sales and a diminution of imports of foreign Community products appears wholly indirect and dependent on a combination of contingent circumstances and cannot be presumed. Consequently, I consider that those circumstances cannot lead to the conclusion that the rules in question, viewed as a whole, impair intra-Community trade. In consequence Article 30 of the Treaty is not applicable in the circumstances.

Contrary to the approach followed in the Court's case-law prior to Keck and Mithouard, including the cases concerning the prohibition of Sunday trading, following that decision, in a case where national rules are found to constitute selling arrangements, there is no need to go on to examine further whether the rules can be justified on the ground of a mandatory requirement in the public interest or on the basis of the exceptions provided for in Article 36 of the Treaty, since by definition the rules do not fall within the scope of application of Article 30.

Although it is unnecessary, I would point out that the Court has recognized that that type of rule pursues a legitimate aim from the point of view of Community law. As the Court held inter alia in Case C-169/91 B&Q, cited above, national rules restricting the opening of shops on Sundays reflect certain choices relating to particular national or regional socio-cultural characteristics. It is for the Member States to make those choices in compliance with the requirements of Community law, in particular the principle of proportionality. In Case C-145/88 Torfaen Borough Council ν B & Q cited above, the Court emphasized that national rules governing the opening hours of retail premises ‘reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the Member States’. In the light of the foregoing I conclude that Article 30 does not apply to national rules prohibiting shops from opening on Sundays and public holidays.

Directives 83/189 and 88/182

20.Council Directive 83/189/EEC of 28 March 1983, as amended by Council Directive 88/182/EEC of 22 March 1988 and, more recently, by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994, lays down a procedure for the provision of information in the field of technical standards and regulations, requiring the Member States immediately to communicate any draft technical regulation (Article 8 of the Directive). According to Article 1 of the directive, ‘technical specification’ means ‘a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labelling’. In the same article it is also stated that ‘technical regulation’ means ‘technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities’. From those definitions it can be concluded that national rules such as those contained in Italian Law No 558 cannot be described as a technical specification or technical regulation within the meaning of the directive. The rules in question do not, moreover, appear to fall within any other of the definitions given in Article 1 of the directive. Regardless however, of that finding, it should be noted that the directive does not have retroactive effect and consequently does not apply to the rules in question, which were laid down in 1971, when there was no requirement of prior communication.

Article 52 of the Treaty and Directive 64/223

21.The Pretura asks in the last of the joined cases (Case C-332/94) whether the Italian rules in question are compatible with Article 52 of the Treaty and Article 2(2) of Directive 64/223 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade. According to settled case-law, Article 52 is intended to ensure that all nationals of Member States who establish themselves in another Member State, even if that establishment is only secondary, for the purpose of pursuing activities there as a self-employed person receive the same treatment as nationals of that State and it prohibits, as a restriction on freedom of establishment, any discrimination on grounds of nationality. Thus, provided that they maintain equal treatment, the Member States are at liberty, since there are no common rules for commercial activities in the distribution sector, ‘to adopt rules governing wholesale trade or retail trade’. It is clear that the provision in question does not introduce discrimination on the ground of nationality since it affects both Italian undertakings and undertaking of other Member States in the same circumstances. Consequently, the rule is not contrary to Article 52 of the Treaty.

The Court has, of course, held in recent decisions that national rules, even though applicable without discrimination on grounds of nationality, are contrary to Articles 48 and 52 if they are liable to hamper or to render less attractive, the exercise by Community nationals of the fundamental freedoms guaranteed by the Treaty. (34) There is nothing, however, in the pleadings to indicate that the provision in question has such restrictive effects, even potentially. Nor is it possible to establish the existence of a causal link between the prohibition against shops opening on Sundays and the possible deterrent effect that that could have on the establishment of large distribution undertakings from other Member States. The existence of such a causal link appears uncertain and vague.

Lastly, as regards Council Directive 64/223 of 25 February 1964, this provides for the attainment, in the wholesale trade sector, of the freedom of establishment guaranteed in Article 52 of the Treaty. What was stated above in relation to that article applies here. In addition it should be made clear, as the Commission emphasizes in its observations, that that directive contains transitional provisions intended to facilitate freedom of establishment in that specific sector during the period before the provisions of Article 52 of the Treaty became fully and directly applicable. Consequently, that directive, albeit not expressly repealed, is now fully covered by the above article and for that reason should be regarded as redundant.

IV — Conclusion

In view of the foregoing, I suggest that the Court of Justice should give the following reply to the questions referred to it by the Pretura Circondariale di Roma (Sezione Distaccata di Castelnuovo di Porto):

Articles 30 and 52 of the Treaty do not apply to national rules such as those in question prohibiting without discrimination the opening of retail shops on Sundays and public holidays. Furthermore, that rule is not contrary to Directives 83/189/EEC, 88/182/EEC and 64/223/EEC.

*1) Original language: Greek.

1 OJ, English Special Edition 1963-1964, p. 123.

2 OJ 1983 L 109, p. 8.

3 GURI (Official Gazette of the Italian Republic), No 200 of 9 August 1971.

4 OJ 1994 C 392, p. 3.

5 Joined Cases C-69/93 and C-258/93 [1994] ECR I-2355.

6 See paragraph 15 of Keck and Mithouard.

7 See paragraphs 16 and 17 of Keck and Mithouard. See also paragraph 12 of Punto Casa and PPV cited above.

8 Case C-69/88 Krantz [1990] ECR I-583.

9 Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097.

10 See also Case C-145/88 [1989] ECR 3851.

11 See Case C-169/91 [1992] ECR I-6635.

12 See Case C-304/90 [1992] ECR I-6493.

13 See also Case C-306/88 Anders [1992] ECR I-6457.

14 See Case C-312/89 [1991] ECR I-997.

15 Joined Cases C-401/92 and C-402/92 [1994] ECR I-2199.

16 Paragraph 14 of Punto Casa and PPV.

17 See point 28 of my Opinion of 23 March 1995 in Case C-63/94 Belgapom [1995] ECR I-2467.

27(27) Sec paragraph 13 of Keck and Mithouard.

28(28) Sec the above-cited judgments Peralta (paragraph 24), Krantz (paragraph 11) and Esso Española (paragraph 24).

29(29) Paragraph 11 of that judgment.

30(30) Paragraph 14 of that judgment. See also paragraphs 11 and 12 respectively of the judgments in Conforama and Others and Marchandise and Others cited above.

31(31) OJ 1994 L 100, p. 30.

32(32) Sec inter alia Case C-204/87 Bekaert [1988] ECR 2029, paragraph 11; Case C-270/83 Commission ν France [1986] ECR 273, paragraph 14; Case C-221/85 Commission ν Belgium [1987] ECR 719, paragraph 10; and Case C-198/86 Conradi and Others [1987] ECR 4469, paragraph 9.

33(33) Sec Conradi and Others, cited above, paragraph 10.

34(34) See inter alia Case C-19/92 Kraus [1993] ECR I-1663.