Opinion of Mr Advocate General Capotorti

Mr President,

Members of the Court,

1. These proceedings are concerned with the interpretation of Articles 7, 30 and 34 of the EEC Treaty with respect to measures imposed by a Member State which prohibit the making and transport at night of ordinary and fine baker's wares.

2. For a clear understanding of the significance of the first question it would be useful to note that in the order for reference the trial judge stated inter alia that the Federal Republic of Germany is the only country within the Community where there is a prohibition on night-work in the bakery industry and that a distortion of competition has thereby been created to the detriment of German tradesmen, in particular those who operate in the frontier areas. They are put at a disadvantage by the fact that tradesmen in the adjacent States where there are no analogous limitations on working hours are in a position to supply bakery products in large areas of the Federal Republic considerably earlier than the German tradesmen. Consequently the Amtsgericht Wiesbaden thinks that Article 5 of the Law on working hours in bakeries may conflict with Article 7 of the EEC Treaty.

3. The second question raised by the trial judge relates, as we have seen, to the interpretation of Articles 30 and 34 of the EEC Treaty and in particular to the prohibition of measures having an effect equivalent to quantitative restrictions on imports and exports. It should be emphasized that the scope of those prohibitions has been gradually defined in a particularly large number of decisions of the Court and that nearly all those decisions have been characterized by a strict approach. In fact, there was no doubt as to the incompatibility with the above-mentioned articles of measures which directly restricted the movement of goods between Member States, such as public health inspections of imports (see for example the judgment of 15 December 1976 in Case 35/76 Simmenthal [1976] ECR 1871) or the requirement that exporters must submit a standards certificate issued by the relevant State-appointed body (judgment of 3 February 1977 in Case 53/76 Bouhelier [1977] ECR 197). But the Court adopted, and has adhered to, a much wider definition of measures having an effect equivalent to quantitative restrictions by including all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see the well-known judgment of 11 July 1974 in Case 8/74 Dassonviile [1974] ECR 837, which was followed in the judgment of 13 March 1979 in Case 119/78 Grandes Distilleries Pereux [1979] ECR 975, paragraph 22 of the decision). More recently the Court included within the scope of the prohibition any national rule which displays the above characteristics (judgment of 26 February 1980 in Case 94/79 Pieter Vriend [1980] ECR 327, paragraph 8 of the decision).

4. I now return to my consideration of the question raised by the Amtsgericht Wiesbaden in these proceedings. There are two aspects to the question, corresponding to the interpretation of Article 30 and of Article 34 of the EEC Treaty respectively. The measures to be examined in the light of each of those provisions are, on the one hand, the measure limiting the hours of nightwork in bakeries and, on the other, the measure prohibiting the transport, sale and delivery of fresh bakery and pastry products between 10 o'clock at night and 5.45 in the morning. It should indeed be remembered that Article 5 of the German Law on working hours in bakeries — the implementation of which in the main action has given rise to this application for a preliminary ruling — not only prohibits production in the above-mentioned establishments during the night but also prohibits the sale, transport or delivery to consumers or retailers of bakery products, regardless of origin, during the above-mentioned period.

5. There remains to be dealt with the most delicate problem raised by these proceedings, namely the limitations on the times at which bakery and pastry products may be sold, delivered and transported. The link between such limitations and the prohibition of nightwork is clear — since work in bakeries is allowed to start at 4 a.m., the prohibition of the sale, delivery and transport from 10 p.m. to 5.45 a.m. is intended to discourage any breach of the prohibition of production between 10 p.m. and 4 a.m., as any bread produced during that period could not be distributed immediately. But the fact which should not be overlooked is that the limitations on working hours referred to here apply both to products manufactured in Germany and to those imported from other countries.

6. Before concluding, I should like to say a few further words about the advisability of not departing from the concept hitherto adhered to by the Court with regard to measures having an effect equivalent to quantitative restrictions, a concept based on a broad and unitary interpretation of the prohibitions contained in Articles 30 and 34, which is however tempered by the existence of important exceptions based on overriding general interests. This concept has the advantage of being clear and functional; the wide scope attributed to the prohibition makes it possible to block all State measures whose effect is to restrict the free movement of goods; furthermore, the extent of the action which Member States may take in order to regulate matters for which they retain responsibility is safeguarded. There is no doubt that the existence of differing national rules which affect production and commerce continues to create obstacles to free trade but the fact that such obstacles are allowed only by way of derogation implicitly emphasizes the need to continue the process of harmonizing the legislation of the different States. If, on the other hand, it is proposed with regard to national measures liable to hinder intra-Community trade that those which fall within the prohibitions laid down in Articles 30 and 34 be distinguished from those to which the said articles do not in fact apply, there is a risk that the door might be opened to further measures of that kind without the availability of any proven means of drawing a precise boundary between the two categories. There would then be grounds for fearing that the boundary might be gradually shifted, weakening the provisions of Articles 30 and 34, in order to take into consideration particular public interests specific to this or that Member State, whereas the constantly upheld principle of the free movement of goods has hitherto been regarded above all as a powerful means of safeguarding the interests of undertakings and consumers in the Community.

7. In view of all the above considerations, I am of the opinion that the questions raised by the Amtsgericht Wiesbaden, by its order dated 22 April 1980, should be answered by the Court as follows:

1 Translated from the Italian.