Opinion of Mr Advocate General Van Gerven delivered on 29 June 1989

1 Original language: Dutch.

2 See point 7 of the order for reference

3 This principle was accepted by the Court in its earliest decisions and has never been called in question. See, for example, the judgments of 19 December 1968 in Case 13/68 Salgoil SpA (in liquidation) v Ministry of Foreign Trade, Rome [1968] ECR 453, at p. 459 and of 30 April 1986 in Joined Cases 209 to 213/84 Ministrère public v Asjes (1986) ECR 1457, at p 1460, paragraph 10. Only in very exceptional cases will the Court depart from this principle. See the judgmenu of 11 March 1980 in Case 104/79 Foglia I [1980] ECR 745, paragraphs 6 to 11, and of 16 December 1981 in Case 244/80 Foglia II (1981] ECR 3045

4 Sec, for example, the judgment of 8 December 1987 in Case 20/87 Ministère public v Camhard [1987] ECR 4879, paragraphs 10 to 12

5 Judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Daisonville [1974] ECR 837, at p. 852, paragraph 5 (my emphasis).

6 See the judgment of 24 November 1982 in Case 249/81 Commission v Ireland [1982] ECR 4005, at pp. 4022 and 4023, paragraphs 22 to 27.

7 Judgment of 14 July 1981 in Case 155/80 Sergius Oebel [1981] ECR 1993, at p. 2010, paragraph 20.

8 Judgment of 31 March 1982 in Case 75/81 Joseph Blesgen v Belgium [1982] ECR 1211, at p. 1229, paragraph 9; see also the judgment of 25 November 1986 in Case 148/85 Direction générale des impôts and procureur de la République v Marie-Louisa Forest and Another [1986] ECR 3449, in which the Court held in paragraph 19: it therefore appears that such a system... in fact has no effect on ... imports and is not likely to impede trade between Member States.

9 The most recent example is the judgment of 16 May 1989 in Case 382/87 Buet [1989] ECR 1235; see paragraph 7 of that judgment.

10 In this regard, sec paragraph 3 above, point 8. These findings of fact of the national court arc supported in particular by a statement of a Netherlands supplier of B & Q (see Annex 4 to the order for reference), according to which the orders placed by B & Q with that undertaking decreased by 31.5% during the period in which the ban on Sunday trading was enforced

11 Judgment of 18 May 1989 in Joined Cases 266 and 267/87 The Queen v Pharmaceutical Society of Great Britain and Others [1989] ECR 1295.

12 See, however, the (different) conclusion of Mr Advocate General Darmon in his Opinion of 10 March 1989, in particular at paragraphs 19 to 28.

13 Judgment of 16 May 1989, cited above in footnote 8.

14 Judgment of 14 July 1981, cited above in footnote 6

15 Judgment of 31 March 1982, cited above in footnote 7

16 Judgment of 25 November 1986, cited above in footnote 7

17 Judgment of 20 February 1979 in Case 120/78 REWEZentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, at p. 662, paragraph 8.

18 A notable example is the judgment of 10 November 1982 in Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PvhA [1982] ECR 3961, in particular paragraph 13, which concerned Belgian rules which only allowed packaged butter to be sold or imported in cube form.

19 See, for example, the judgment of 15 December 1982 in 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 and certain means of sales promotion.

20 Judgment of 11 July 1985 in Joined Cases 60 and 61/84 Cinéthèque SA and Others v Fédération nationale des cinémas français, (1985) ECR 2605. The issue in this case was whether a French law which in principle imposed a (temporary) ban on the sale or hire of videocassettes of a film being shown in cinemas was compatible with Article 30 of the Treaty.

21 [1985] ECR 2611

22 [ 1984] ECR 2611 and 2612

23 Sec paragraph 19 of the judgment.

24 Judgment of 23 February 1988 in Case 216/84 Commission v France [1988] ECR 793. This judgment has just been confirmed by the judgment of the Court of 11 May 1989 in Case 76/86 Commission v Germany (milk substitutes) [1989] ECR 1021. I will deal only with the first-mentioned judgment.

25 Judgment of 17 May 1988 in Case 158/86 [1988] ECR 2605.

26 Cited above, in footnote 8.

27 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 and 7) if the Court had accepted that an obstacle existed.

28 Sec paragraph 7 of lthe judgment. The French Government had not contested the applicability of the prohibition in Article 30 sec paragraph 4 of the judgment. In any event the applicability of Article 30 to prohibitions on marketing 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 Pmducln BV[1981] ECR 3277

29 Just as in Cmelheque, it is to be expected that, by the end of the longer prohibition period, interest in videocassettes of a film will have declined.

30 See paragraph 19 of the judgment.

31 Cited above in footnote 18

32 Sec paragraphs 7 and 8 of the ludgment

33 Sec paragraph 18 of the judgment

34 See the judgment of 30 June 1966 in Case 56/65 Société technique minièrev Maschinenbau Ulm [1966] ECR 235.

35 Cited above in footnote 4.

36 As regards cartel agreements, see the judgment of 13 July 1966 in Joined Cases 56 and 58/64 Consten-Grundig v Commission [1966] ECR 299, at pp. 341 and 342; on trading rules, see the judgment of 24 November 1982 in Case 249/81, cited above in footnote 5.

37 There are also differences in application. Thus for example in the case of Article 30 no application could be made of the de minimis rule (see the judgment of 5 April 1984 in Joined Cases 177 and 178/82 Van de Haarana Kaveka De Meem [1984] ECR 1797, paragraph 13). That rule does apply in the case of Article 85, in particular as regards the requirement that there must be an appreciable effect on trade between Member States (see the judgment of 9 July 1969 in Case 5/69 Völk v Vervaecke [1969] ECR 295).

38 Subject of course to the de minimis rule and possibly, bur only very exceptionally, to the application of Article 85(3)

39 Again subject to the de minimis rule and to the application of Article 85(3)

40 Translator's note- The expression used in the authentic Dutch text was een versterking van de nationale drempelvorming; for the purposes of the translation of this Opinion, the expression drempelvorming (formation of a bar or raising of a threshold) is hereinafter variously translated by the concepts of making access to, or penetration of, a national market more difficult or of increasing barriers to a national market.

41 Judgment of 17 October 1972 in Case 8/72 Cementhan-delaren v Commission (1972] ECR 977, paragraphs 29 and 30 That case concerned a horizontal agreement between producers. Previously the Court had already stated that even a vertical agreement with limited scope, namely a brewery agreement between a local brewer and a local client, mignt, regard being had to the entire legal and economic context, breach the prohibition in Article 85(1) See the judgment of 12 December 1967 in Case 23/67 Brasserie de Haecht v Wiikin [1967] ECR 407

42 Naturally, as is clear from the judgment in Cinèthèqus and the most recent judgments, subject to the application of Article 36 and of mandatory requirements.

43 Paragraph 13 above.

44 Once again, subject to the application of Article 36 or of mandatory requirements.

45 See paragraphs 4 and 18 of the judgment.

46 Apart from a restriction on Sunday trading, other examples would be restrictions on the opening of new businesses in 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 taxes (see Case 69/88, pending before the Court), the imposition of speed limits, and so forth.

47 The Court has always confirmed that the purpose of Article 36 of the Treaty is not to reserve certain matters to the exclusive jurisdiction of the Member States. See the judgments of 10 July 1984 in Case 72/83 Campus OH Ltd v Minister fir Industry and Energy [1984] ECR 2727, paragraph 32, and of 12 July 1979 in Case 153/78 Commission v Germany [1979] ECR 2555, paragraph 5, and the judgments cited there. In my view this principle applies equally to the case of mandatory requirements.

48 The Home Office Report entitled The Shops Act — Late-night and Sunday opening: Report of the Committee of Inquiry into proposals to amend the Shops Acts, presented to Parliament in November 1984 and attached as Annex 2 to B & Q's observations, states that since 1974 enforcement of the Shops Act has been the responsibility of the local authorities. Some authorities have adopted a policy of not enforcing the law at all; many others act only in response to complaints (paragraph 25 of the report). The report also states that very few local authorities prosecute as a matter of policy all traders who open outside the permitted hours (ibid.).

49 The estoppel principle is referred to in the ludgmem of 10 February 1983 in Case 230/81 Luxembourg v Parliament [1983] ECR 255, paragraphs 22 to 26. Sec also the Opinion of Mr Advocate General Mancini in that case, (1983) ECR 293, at p 295

50 Judgment of 14 December 1979 in Case 34/79 Regina v Henn and Darby (1979) ECR 3795. Sec also the judgment of 11 March 1986 in Case 121/85 Conegate Ltd v HM Cintomi & Exsuse [1986] ECR 1007, in particular paragraphs 14 and 15.

51 Sec the judgments cited above in footnote 46.

52 Judgment of 27 October 1977 in Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraph 33 (with reference to the judgment of 4 December 1974 in Case 41/74 Van Duyn v Home Office [1974] ECR 1337. al p 1350)

53 Judgment in Bouchereau, cued in note 51 above, paragraph 35 Sec also the Opinion of Mr Advocate General Warner in that case, [1977) ECR 2016, at pp 2024 to 2026

54 Such a finding is made by the court of reference. See point 4 of paragraph 3 above.

55 There is considerable doubt on this point, all the grounds relied upon to justify the rule presuppose that shops arc closed on Sunday, in fact, however, the Shops Act permits shops to open on Sunday, at least if they open only to sell exempted goods In practice it is clear that tins exception is widely used Sec paragraph 22 of the Home Office Repon, cued above in footnote 47

56 Cued above in footnote 49