Opinion of Advocate General Van Gerven delivered on 8 July 1992

1 Original language: Dutch.

2 Judgment in Case C-145/88 Torfaen Borough Council v B & Q [1989] ECR 3851.

3 Judgment in Case C-312/89 Conforama [1991] ECR I-997.

4 Judgment in Case C-332/89 Marchandise [1991] ECR I-1027.

5 For the first three questions see the Report for the Hearing.

6 The observations submitted by Payless DIY Limited are supported by Wickes Building Supplies Limited, Great Mills (South) Limited and Homebase Limited.

7 Conforama and Marchandise [1991] ECR I-997 at p. I-1009, section 5.

8 For a comparative law review, see amongst others T. Askham, T. Burke and D. Ramsden, EC Sunday Trading Rules, in Current EC Legal Developments Series, London, Butterworths, 1990. See also EC Commission, Measures taken in the field of commerce by the Member States of the European Communities, Luxembourg, 1985.

9 Sec section 5 of my Opinion, cited above.

10 Conforama judgment, paragraph 13; Marchandise judgment, paragraph 14, with the added phrase in brackets.

11 Torfaen judgment, paragraph 17.

12 Torfaen judgment, paragraph 16.

13 Conforama judgment, at paragraph 12; Marchandise judgment, at paragraph 13.

14 Judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5. For recent applications of this formula see, ¡titer alia, the judgments in Case C-239/90 Boiclier [1991] ECR I-2023, paragraph 13; Case C-287/89 Commission v Belgium [1991] ECR I-2233, paragraph 16; and Joined Cases C-1/90 and C-176/90 Aragonesa [1991] ECR I-4151, paragraph 9.

15 Judgment in Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de Meern [1984] ECR 1797, paragraph 13; judgment in Case 269/83 Commission v France [1985] ECR 837, paragraph 10; judgment in Case 103/84 Commission v Italy [1986] ECR 1759, paragraph 18.

16 See judgment in Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, paragraph 8; see most recently, inter alia, judgments in Case C-362/88 GB-Inno-BM [1990] ECR I-667, paragraph 10; Case C-241/89 SARPP [1990] ECR I-4695, paragraph 31; and Case C-238/89 /W/[1990] ECR I-4827, paragraph 12.

17 Cf. more recently inter alia the judgment in Case 407/85 Drei Glocken v USL Centro-Sud [1988] ECR 4233, paragraph 10; judgments in Case 382/87 Buet [1989] ECR 1235, paragraph 13; Case C-269/89 Bonfait [1990] ECR I-4169, paragraph 11; SARPP judgment, paragraph 31; Pall judgment, paragraph 12.

18 Judgment in Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR 4575, paragraph 15; that rule was recently re-affirmed in Buet (paragraphs 7 to 8), GB-Inno-BM (paragraph 7), SARPP (paragrapli 29), Boscher (paragraph 14) and Aragonesa (paragrapli 10); see also the judgments in Case C-369/88 Delattre [1991] ECR I-1487, paragraph 50, and Case C-60/89 Monteil and Samarmi [1991] ECR I-1547, paragraph 37.

19 See judgment in Case 155/80 Oebel [1981] ECR 1993, paragraph 4, and the facts of the judgment at p. 1998, where the German Government explains this second objective.

20 Judgment in Joined Cases 60 and 61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 23.

21 Judgment in Case 15/78 Société Générale Alsacienne de Banque v Koestler [1978] ECR 1971, paragraph 5.

22 Judgment in Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, paragraph 15; judgment in Case 352/85 Bond van Adverteerders [1988] ECR 2085, paragraph 38.

23 Judgment in Case 279/80 Webb [1981] ECR 3305, paragraphs 18 and 19.

24 There are various illustrations of this: judgment in Oebel, cited above; judgments in Case 75/81 Blesgen [1982] ECR 1211; Case 148/85 Direction générale des impôts v Forest [1986] ECR 3449; Case C-69/88 Krantz [1990] ECR I-583; Case C-23/89 Quietlynn and Richards v Southend Borough Council [1990] ECR I-3059; and Case C-350/89 Sheptonhurst v Newham Borough Council [1991] ECR I-2387.

25 In connection with the freedom to provide services there was recently a hint of this idea in the Grogan judgment: the link between the provision of information in one Member State on the clinical termination of pregnancies in another Member State and the pregnancy termination service itself (carried out by a provider of services completely independent of the providers of the information, themselves established in the first Member State) was held by the Court to be too tenuous for a constitutional prohibition applicable in the first Member State on the provision of information to be regarded as a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (judgment in Case C-159/90 SPUC v Grogan [1991] I-4685, paragraph 24).

26 Cinéthèque judgment, paragraph 21; Krantz judgment, paragraph 10; Quietlynn judgment, paragraph 11.

27 Sec inter alia the recent judgments in Buet, GB-Inno-BM, Boschcr and Aragonesa, already referred to; ef. also the judgments in Case C-241/89 SARPP [1990] ECR I-4695, paragraph 21; Case C-347/89 Enrim-Phann [1991] I-17-17, paragraphs 27 to 35; Case C-39/90 Denhavit [1991] ECR I-3069, paragraph 24; Joined Cases C-13/91 and C-113/91 Debits [1992] ECR I-3617, paragraphs 24 and 25. Illustrations can also be found in other areas of Community law; see for example, with regard to the provision of services, the recent judgment in Case C-288/89 Conda [1991] ECR I-4007, paragraphs 23 and 24.

28 Torfaen judgment, paragraph 14 in fine; Conforama judgment, paragraph 8; Marchandise judgment, paragraph 9.

29 Torfaen judgment, paragraph 11; Conforama judgment, paragraph 9; Marchandise judgment, paragraph 10.

30 Torfaen judgment, paragraph 12; Conforama judgment, paragraph 10; Marchandise judgment, paragraph 11.

31 Torfaen judgment, paragraph 14; Conforama judgment, paragraph 11; Marchandise judgment, paragraph 12.

32 Conforama judgment) paragraph 12; Marchandise judgment, paragraph 13.

33 Conforama judgment, paragraph 6; Marchandise judgment, paragraph 7.

34 The Court has repeatedly emphasized that the need to arrive at a useful interpretation of Community law makes it essential to define the legal context within which the interpretation requested must be placed: see judgments in Case 244/78 Union Laitière Normande v French Dairy Fanners [1979] ECR 2663, paragraph 5; and Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers [1981] ECR 735, paragraph 6.

35 That is settled case law: sec, inter alia, judgment in Case 101/77 Oehlschlager v Hauptzollamt Emmerich [1978] ECR 791, paragraph 4; judgment in Case 167/84 Hattptzollamt Bremen-Freihafen v Driblen [1985] ECR 2235, paragraph 12.

36 On the question whether it is desirable for there to be contact between the Court and national courts where certain elements arc missing from the preliminary reference, I would refer to T. Koopmans, The Technique of the Preliminary Question —A View from the Court of Justice, in Article 177 EEC: Experiences and Problems, H. Schermers et al. (eds.), The Hague, T. M. C. Asser Institute, 1987, p. 327, at p. 333: It would be a great help if the Court of Justice could make contact with the referring court if it should discover that some elements of information arc missing. Rules of procedure applicable to the national courts make it impossible, however, for most of them to reopen the case after having suspended it when they put their questions to the Court of Justice. In particular, national rules on litigation before civil and criminal courts — as opposed to administrative courts or tribunals — are normally too strict to permit an exchange of information after the order for a reference has been made.

37 It may be inferred from judgments such as those recently delivered in Case 12/88 Schäfer Shop v Minister van Economische Zaken [1989] ECR 2937, paragraph 23, and Case C-367/89 Richardt [1991] ECR I-4621, paragraph 25, that the Court does refer the assessment of proportionality more frequently to the national court.

38 Conforama judgment, paragraph 11; Marchandise judgment, paragraph 12.

39 With regard to the freedom to provide services the Court has for some considerable time recognised the protection of workers as an imperative public interest requirement justifying a restriction on intra-Community trade: that occurred for the first time in Webb, cited above at note 22, paragraph 19 of the judgment; cf. most recently the judgments in Case C-288/89 Gouda, cited above at note 26, paragraph 14, and in Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 18.

40 In some cases the Court does not await recognition of an objective in a Treaty provision in order to regard it as an imperative requirement. For example, the Court regarded environmental protection as an essential Community objective well before the entry into force of the Single European Act: see judgment in Case 240/83 ADBHU [1985] ECR 531, paragraph 13. In the Webb judgment, too, (see note 38) the protection of workers was also recognized, this time in connection with the freedom to provide services, as an imperative public interest requirement, some considerable time before the entry into force of the Single European Act.

41 Oebel judgment, paragraph 12.

42 Torfaen judgment, paragraphs 13 and 14.

43 Marchandise judgment, paragraph 19.

44 With regard to the relationship between a policy for promoting a national language as an expression of national identity and culture and freedom of movement for workers, see the judgment in Case C-379/87 Groener v Minister of Education [1989] ECR 3967.

45 Indeed, it is far from hypothetical that such provisions may be able to rely on the grounds mentioned in that provision of public morality, public policy or public security (or) the protection of national treasures possessing artistic ... value.

46 Sec, in relation to the freedom to provide services (Articles 66 and 56 of the EEC Treaty), the judgment in Case C-260/91 Elliniki Radiopboma Tileorasi [1991] ECR I-2925, paragraph 45. With regard to the freedom to provide services the Court has held, moreover, in the recent judgments on the Netherlands Mediawet that a national cultural policy, connected, through the operation of a pluralistic broadcasting system, with the protection of freedom of expression, may constitute a imperative public interest requirement justifying a restriction on the freedom to provide services: Gondii judgment, paragraph 23; Case C-288/89 Commission v Netherlands, paragraph 30.

47 That approach appears to have been taken in the judgment of the High Court of Justice, Chancery Division, in Stoke-on-Trent City Council v B & Q pic and Norwich City Council v B & Q pic, [1991] WLR 42.

48 Judgment in Case 182/84 Miro [1985] ECR 3731.

49 Miro judgment, paragraph 14.

50 OJ, English Special Edition 1970 (I), p. 17.

51 Judgment in Case 74/76 Iannelli v Meroni [1977] ECR 557, paragraph 13. In any event the directive was regarded by the Commission mainly as a set of guidelines. A. Matterà confirms that the objective of the Commission was to lay down an authoritative point of reference based on its experience acquired in investigating numerous cases of measures having equivalent effect, in order to enable Member States to be better acquainted with the extent of their obligations in the matter: Le Marché Unique Européen. Ses règles, son fonctionnement, Paris, Jupiter, 2nd Edition, 1990, p. 42.

52 I think that is clearly to be seen in the judgments in Case 56/87 Commission v Italy [1988] ECR 2919, paragraph 7, and Case C-249/88 Commission v Belgium [1991] ECR I-1275, paragraph 7 in fine, where it is stated: this interpretation of Article 30 [that is to say, that provided for in Article 2(3)(c)-(e) of Directive 70/50] is confirmed by the Court's settled case law.

53 See inter alia the recent judgment in Case 63/86 Commission v Italy [1988] ECR 29, paragraph 14.

54 In paragraphs 12 and 15.

55 Cf. the wording adopted by the Court in Case 25/88 Wiirmser [1989] ECR 1105, paragraph 13.

56 The criterion set out in the last indent of the second sub-paragraph of Article 3 of Directive 70/50 is to the same effect as this latter aspect of the necessity test.

57 In other words this is an application of the test mentioned in the first indent of the second sub-paragraph of Article 3 of Directive 70/50.

58 In particular in the Cméthèqitc judgment, paragraph 22, and in the Torfacn judgment, paragraph 12.

59 Cf. my Opinion in Torfaen, at section 30.

60 See the Aragonesa judgment, cited above (note 13), paragraph 13, and my Opinion in that case, at section 14.

61 See my Opinion in Torfaen, section 32 at p. 3883; it was already clear in Torfaen that there were significant doubts as to the effectiveness of the United Kingdom Sunday trading rules: ibid., footnote 54.

62 This has been repeatedly affirmed by the Court, in particular with regard to freedom of movement for workers (see, most recently, the judgment in Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341), freedom of establishment (see inter alia the judgment in Joined Cases C-51/88, C-91/88 and C-14/89 Nino [1990] ECR I-3537) and freedom to provide services (sec the recent judgment in Case C-60/91 Morais [1992] ECR I-2085).