Opinion of Advocate General
Mr President,
Members of the Court,
1. These cases once again concern the compatibility with the Treaty provisions on the free movement of goods of the prohibition in England and Wales on the operation of a shop on Sundays (hereinafter the Sunday trading ban or the United Kingdom Sunday trading provisions). Three sets of proceedings are pending before English courts against persons charged with infringements of the Sunday trading ban.
Legal and factual background
2. Section 47 of the Shops Act 1950 lays down the following prohibition:
3. The Sunday trading ban as imposed by the Shops Act is a matter of controversy in Great Britain. As the House of Lords observes in its order for reference in Case C-169/91, it is an issue on which feelings run very high. British public opinion is very divided on it; one-third of the population appears to be in favour of retention of the law, and two-thirds are in favour of abolition or amendment, though without any agreement as to the form which such amendment should take. Since 1936 the United Kingdom Sunday trading provisions have withstood many attempts by Private Members Bills in Parliament, and in one case even by the Government, to secure their abolition or amendment. It should be added that for some time the law has to a considerable extent been disregarded, and that contraventions are not systematically prosecuted.
4. The earliest of the three cases, C-306/88, concerns proceedings brought by Rochdale Borough Council against Stewart John Anders. Mr Anders is charged with opening his shop at Dale Mill on Sundays for transactions other than those mentioned in the fifth schedule to the Shops Act. Rochdale Borough Council has applied to the High Court of Justice, Queen's Bench Division, for an injunction restraining Mr Anders himself and his servants or agents from opening the shop on Sundays for the serving of customers, save for the transactions listed in the fifth schedule to the Shops Act. Mr Anders admits the contravention of the Sunday trading ban, but contends that the ban conflicts with Community law since it constitutes a measure having equivalent effect prohibited under Article 30 of the Treaty and is not justified under any of the exemptions contained in Article 36 or on any other basis.
5. Case C-304/90 involves 20 informations laid by Reading Borough Council against five defendants in the national proceedings (Payless DIY Limited, Wickes Building Supplies Limited, Great Mills (South) Limited, Homebase Limited, on the one hand, and B & Q Pic on the other); all are alleged to have opened their shop premises on Sundays for transactions other than those listed in the fifth schedule to the Shops Act. Whilst the parties are agreed that the Sunday trading ban constitutes a measure having equivalent effect, opinions differ as to whether it is justified. Reading and Sonning Magistrates' Court has asked the Court of Justice to give a preliminary ruling on the following questions, which to a large extent concern the scope of the Torfaen judgment:
6. In the most recent case, Case C-169/91, the House of Lords asks a number of questions intended to clarify the relationship between the judgments in Conforama and Marchandise and the Torfaen judgment. The defendant in the main proceedings is once again (as in the Torfaen case and now in Case C-304/90) B & Q Plc, one of the largest operators of do-it-yourself shops and garden centres in the United Kingdom. The majority of the garden and do-it-yourself items sold in its shops are not mentioned in the fifth schedule to the Shops Act. Following the Court's judgment in Torfaen, the Council of the City of Stoke-on-Trent and Norwich City Council brought proceedings against B & Q for a final injunction to enforce compliance with the Sunday trading ban. On 18 July 1990 the High Court held that the local authorities were entitled to that injunction, but did not order it since B & Q gave appropriate undertakings. B & Q nevertheless appealed to the House of Lords on the basis that a point of law of general public importance was involved, namely the function of the national courts in assessing the Sunday trading ban in relation to the principle of proportionality.
7. In my remarks I shall rearrange the questions referred to the Court in the following manner. First of all I shall deal with the first question submitted by the House of Lords on the significance of the Conforama and Marchandise judgments for the United Kingdom Sunday trading provisions. In doing so I shall begin by examining the points of difference between Torfaen and Conforama and Marchandise and then place these three judgments in the context of the Court's recent case-law on the applicability in principle of Article 30 (sections 8 to 17). Before embarking on the questions relating to the assessment of justification and proportionality, I shall first examine who is to carry out that assessment, the Court of Justice or the national court (sections 18 to 20). I shall then deal with the first question from the Magistrates' Court on the justification under Community law of the Sunday trading ban (sections 21 to 25). The question of proportionality then arises, in relation to which I shall deal with the second and third questions raised by the House of Lords, and the numerous sub-questions contained in the second question submitted by the Magistrates' Court (sections 26 to 32). Finally, I shall deal, in so far as may be necessary, with the Magistrates' Court's remaining questions, together with the sole question still before the Court in Case C-306/88 (sections 33 and 34).
Comparison of the Torfaen judgment and the Conforama and Marchandise judgments
8. Both Payless DIY (Case C-304/90) and B & Q (Case C-169/91) argue that a distinction must be drawn between the French and Belgian labour provisions at issue in Conforama and Marchandise respectively and the United Kingdom Sunday trading provisions at issue in Torfaen (and in these cases). The former provisions are said to be of a very general nature, aimed at the protection of employees, so that the general rule is that workers may not be employed on Sundays. In England and Wales, on the other hand, the population is free to choose whether or not to work on Sundays, with the exception of the staff of retailers. The French and Belgian laws prevent workers from being employed in shops on Sundays, and thus have no effect on small owner-run shops, which can in both France and Belgium remain open all day on Sundays. Though the French and Belgian provisions contain exceptions, these do not give rise to such inconsistent results as the exceptions to the United Kingdom Sunday trading ban. Finally, the French and Belgian laws apply across the whole territory of those States, albeit with a limited possibility in France for local authorities to permit regional derogations. However, section 47 of the Shops Act does not apply in Scotland.
9. As I stated in my Opinion in Conforama/Marchandise, I do not consider the abovementioned points of difference between the national provisions in question to be decisive in regard to the application of Article 30 of the Treaty. What is important is the effect of the provisions in both cases on intra-Community trade, and that is very similar. In both cases specific legislation, relating either to labour law or to trade regulation, results in a large number of trading outlets within the territory in which the legislation concerned is applicable being closed on Sundays. Notwithstanding the differences in scope and conditions between the provisions in question, it follows from their general tenor that they have a definite (and pro rata) impact on sales of both national and imported products.
10. B & Q also seeks to demonstrate that these judgments must be distinguished on account of differences between the facts underlying them. It argues that if in Conforama and Marchandise the Court had had before it the evidence which was available in Torfaen, even having regard to the differences between the national provisions concerned, it would most probably have come to a different conclusion.
The applicability in principle of Article 30 of the EEC Treaty and the Court's recent case-law
11. The first question raised by the House of Lords seeks to obtain a definite answer with regard to the consequences of the Court's judgments in Conforama and Marchandise for the United Kingdom Sunday trading rules. In those judgments the Court concluded that
12. According to B & Q, it follows from those judgments, as was rightly emphasized in Torfaen, that the prohibition contained in Article 30 of the EEC Treaty is in principle applicable: the Sunday trading ban contained in the Shops Act does amount to a measure having equivalent effect within the meaning of Article 30. The Court was therefore right to leave it to the national court to assess the proportionality of the rules, the actual objective pursued by them and their justification under Community law.
13. It seems to me that the Conforama and Marchandise judgments and the Torfaen judgment are not in conflict as regards the applicability in principle of Article 30 to provisions such as the United Kingdom Sunday trading ban. The different formulation of the Court's judgment results merely from the fact that in the first-mentioned cases the Court itself assessed the issue of proportionality, whilst in Torfaen it referred that question to the national court. If the Court had been of the view in Conforama and Marchandise that the French and Belgian labour provisions did not fall within the scope of Article 30 at all, it could have said so straight away. As I have stated, there is a difference between the various judgments in regard to the application of the proportionality test. In this connection it is necessary to provide the referring courts with terms of reference concerning the criteria to be applied and by whom they are to be applied. Only then can the consistency of the Court's case-law on the free movement of goods be safeguarded. It is not acceptable that with regard to the same legislation attracting criminal sanctions for infringements national courts should decide in one case that it is valid under Community law (resulting normally in conviction of the person who has infringed the law) and in another that the law is invalid (normally leading to acquittal).
14. A study of the Court's recent case law on the free movement of goods reveals, in my view, the following guiding principles.
15. Moreover, the Court's recent case law shows that, in examining whether national legislation pursues an objective justified under Community law, the Court is sympathetic to legislation which reflects lawful socio-economic or socio-cultural policy choices which are consistent with the public interest objectives pursued in the Treaty. Illustrations of this may be found in the Oebel and Cinéthèque judgments. Oebel concerned national legislation which sought to improve working conditions (protection of workers in small and medium-sized bakeries against permanent night work which might damage their health) and the protection of small family businesses against ruinous competition from larger industrial undertakings. In Cinéthèque the Court held that national legislation providing for a temporary ban on the distribution of films in video-cassette form, in order to encourage the production of films — irrespective of their origin — and thus to protect the film industry, was pursuing an objective justified under Community law.
16. Finally, with regard more specifically to the proportionality test, it seems that the Court regards that test as satisfied where national legislation clearly has no connection, or merely a very indirect or uncertain one, with imports from other Member States or the national legislation in question does not impede imports and exports.
17. The Torfaen, Conforama and Marchandise judgments must be seen in the context of this recent case-law. All three judgments implicitly but clearly assume that the rules in question are to be regarded as trading rules under the Dassonville formula. Furthermore, in each of those cases the Court states that the rules in question are not intended to govern the flow of trade between Member States, that they apply to imported and domestic products without distinction and that the marketing of products imported from other Member States is not made more difficult than the marketing of domestic products. In addition, it is expressly stated in the three judgments that the compatibility of the rules in question with Article 30 depends on whether the obstacles to trade caused by the rules exceed what is necessary in order to attain the objective in view (proportionality test) and whether that objective is justified under Community law (justification test).
Who is to apply the justification and proportionality tests under Community law?
18. This question of principle is not as such submitted by the national courts. Nevertheless it is of decisive importance. As may be seen in particular in the preliminary question formulated in Case C-3 04/90, the English courts have inferred from the Torfaen judgment that at least the assessment of the proportionality of the United Kingdom Sunday trading rules is a matter for them. B & Q goes still further in its interpretation of Torfaen: besides the proportionality test, the determination of the actual objective of the legislation and the examination of the question whether that objective falls within the objectives held to be justified under Community law by the Court are, it says, matters for the national courts. Those, it argues, are questions of national law which fall outside the jurisdiction of the Court of Justice, in particular where the objective of the legislation is open to doubt or is disputed.
19. It is clear that, in the context of a reference for a preliminary ruling, it is the joint task of the Court and the national courts to determine whether a national measure is compatible with Community law. The Court's view as a matter of principle on this point is abundantly clear, and is reiterated at the beginning of the judgments in Conforama and Marchandise:
20. With regard specifically to the assessment of justification and proportionality under Community law, the collaboration outlined above in general terms takes the following form.
The requirement of an objective which is justified under Community law
21. In its first question Reading and Sonning Magistrates' Court seeks to determine whether the objective underlying the United Kingdom Sunday trading provisions is justified under Community law within the meaning of paragraphs 12 to 14 of the Torfaen judgment. The Magistrates' Court considers that that objective is to ensure so far as possible that shopworkers do not have to work on Sundays, with a view to maintaining what many regard as the traditional English Sunday.
22. Like Reading Borough Council, the United Kingdom and the Commission, I am of the opinion that the question raised by the Magistrates' Court has already been answered in Torfaen itself. It is sufficient in that connection to read the relevant grounds of the judgment (paragraphs 13 and 14). In so far as there might still have been some doubt after Torfaen with regard to the justification under Community law of that objective, it was entirely removed by the judgments in Conforama and Marchandise. There the Court expressly stated that
23. The question arises whether, in addition to the grounds of justification exhaustively enumerated in Article 36 of the EEC Treaty and the specific mandatory requirements under Article 30 of the EEC Treaty which have hitherto been recognized in the Court's case-law (effectiveness of fiscal controls, fairness of commercial transactions, consumer protection, environmental protection), the Court also recognizes a general, less specific category of grounds of justification — that is to say, in the terms of Torfaen, Conforama and Marchandise, those which reflect certain political and economic choices... [in accordance] with national or regional sociocultural characteristics, [the assessment of which, ] in the present state of Community law, is a matter for the Member States.
24. It is not my intention in these remarks to preclude the possibility that there may well be a place for a ground of justification generally concerning national rules which reflect certain political and economic choices in keeping with national or regional sociocultural characteristics. I am thinking of provisions adopted in policy areas which in the current state of Community law (still predominantly economically orientated) lie outside the competence of the Community and are thus not consistent with an essential Treaty objective, but are not contrary to one either. Examples are national provisions concerning questions of a purely political, moral or religious nature or the protection of the cultural and linguistic identity of a people, whose assessment is undoubtedly, to take the words of the Sunday trading judgments, in the present state of Community law ... a matter for the Member States. Nevertheless, here too, in order to prevent an undesirable proliferation of grounds of justification, I consider that as close a connection as possible must be sought with the grounds provided for in Article 36 of the EEC Treaty, the objectives of Community law recognized in the European Treaties and the fundamental rights which form part of the Community legal order, in the light of which those grounds and objectives must be construed.
25. The foregoing general observations permit me to share the view formed by the Court in the Sunday trading cases with regard to the justification under Community law of Sunday trading rules. Whatever may be the reasons for the enactment and retention of the United Kingdom Sunday trading ban, it seems to be clear — as was confirmed by the United Kingdom at the hearing — that those provisions are intended to ensure that shopworkers should not (or as little as possible) have to work on Sundays. That gives them inter alia the possibility of devoting that day to family or friends in nonoccupational activities. In so far as such an objective is aimed at social protection, as the Court has held, it is consistent with one of the objectives of Community law, that is to say the improvement of working conditions and the protection, by means of regular rest periods, of the health of shopworkers. The fact that a specific day, Sunday, is chosen for that purpose reflects a choice in keeping with a national or regional socio-cultural preference in a policy area outside the sphere of competence of the Community; subject to application of the proportionality test, I cannot see why it should be contrary to Community law.
The Community proportionality requirement
26. In its second question the House of Lords seeks to determine whether it is immediately apparent, whether or not evidence is adduced, that a measure such as the Sunday trading ban is proportionate to the objective pursued, which is justified under Community law. In the event that the reply to that question should be in the negative, the House of Lords seeks in its third question to ascertain on what criteria and by reference to what evidence the national court must determine whether the restrictive effects of the legislation under examination exceed the effects intrinsic to rules of that kind. The first three sub-questions and the sixth sub-question of the second question submitted by the Reading and Sonning Magistrates' Court are along the same lines. The first two sub-questions once again concern the criteria to be applied by national courts: more specifically they concern the question whether and to what extent the criteria mentioned in Article 3 of Directive 70/50 are applicable. The third sub-question seeks to ascertain to what extent the national court, in its assessment of the proportionality requirement, must abide by the conclusion of the national legislature. In the sixth sub-question the national court asks how a national court is to compare the restrictive effects of the legislation with the objective pursued by that legislation.
27. As I have already stated (section 20), it is ultimately for the national court to assess the proportionality of the national measure in question. I do not think there are any measures in respect of which it is prima facie clear, that is to say without any evidence being adduced, that they satisfy the proportionality test. However, as I have observed, the information provided to the Court by the national court in its reference for a preliminary ruling may be so clear and uncontested with regard to the absence or near absence of any restrictive effect of the legislation on intra-Community trade that the result of the proportionality test is obvious and can be stated by the Court itself.
28. That brings me to the questions on the criteria to be applied by the national courts, and where appropriate by the Court of Justice, in assessing proportionality. I shall begin by dealing with the questions on the significance of Article 3 of Directive 70/50 in the application of the proportionality test. The starting point is paragraph 15 of the Torfaen judgment, in which express reference was made to that directive. For the sake of clarity I shall reproduce the text of the relevant provision of the directive:
29. The Magistrates' Court asks first of all whether the national court is required to apply the criteria set out in Article 3 of Directive 70/50. According to Reading Borough Council that is certainly so. By expressly referring in Torfaen to the above-mentioned provision and by adopting its wording, the Court, it argues, indicated that Article 3 of Directive 70/50 accurately reflects the scope of Article 30. In my opinion that interpretation goes too far. Since the expiry of the transitional period (that is to say, since 1 January 1970) Directive 70/50 has played a modest role: the prohibition imposed by Article 30 of the EEC Treaty has since then had direct effect and thus its implementation does not require any subsequent intervention of the Member States or Community institutions. In its case-law the Court thus refers to Directive 70/50 — in particular to the list of categories of measures having equivalent effect contained in Article 2(3) — only where the wording of the directive tallies with its settled case-law. To a certain extent that may be compared with the Court's reference to the general programmes adopted by the Council on the right of establishment and the freedom to provide services, to which it sometimes has regard, since they provide useful guidance with a view to the implementation of the provisions of the Treaty.
30. What, then, are the criteria for applying the proportionality requirements at Community law, as they may be deduced from the Court's case-law? As was emphasized twice in the Torfaen judgment, the starting point is that the restrictive effects of national legislation on intra-Community trade may not exceed what is necessary in order to ensure the attainment of the objective justified under Community law. There are two aspects to that, which may be summarized as follows.
31. That brings me to the last sub-question (f) of the second question submitted by the Magistrates' Court. In it the national court seeks additional information on the manner in which the restrictive effects on the free movement of goods arising from national legislation must be compared with the objective pursued by that legislation.
32. Again in relation to the application of the proportionality test, the Reading and Sonning Magistrates' Court referred to the Court two supplementary sub-questions (points d and e of the second question). In the first place the Court is asked whether the national court, in assessing the effects of the legislation in question, may take account of the totality of the restrictive effects on intra-Community imports or only of the restrictive effects on imported goods compared to domestic goods. The answer to that is that in its case-law the Court does not restrict itself to the discriminatory effect of national legislation on imported goods, but takes account in its assessment of all restrictions on intra-Community trade caused by the legislation. Even in cases where it is clear that a national measure is applicable without distinction to domestic and imported products and the Court finds that there is no question of any intention to partition markets or manipulate trade flows, it takes as the criterion for the purposes of the proportionality test the totality of the restrictions caused to intra-Community trade.
Remaining questions
33. I do not need to go into the third question submitted by the Reading and Sonning Magistrates' Court, that is to say whether the United Kingdom Sunday trading rules fall within the sphere of application of Article 36 of the Treaty: the legislation at issue constitutes a non-discriminatory measure covered by the rule of reason inherent in Article 30 of the Treaty. Even if it is considered that the United Kingdom Sunday trading provisions in part pursue a public health objective inasmuch as they envisage rest periods for a significant section of the population (see above, section 25), in relation to non-discriminatory national measures that ground of justification performs the same function as the mandatory requirements inherent in Article 30 of the EEC Treaty. Moreover, the assessment of proportionality in the context of Article 36 of the EEC Treaty is conducted in the same manner as described above in relation to Article 30 of the EEC Treaty.
34. I thus come to the last question, namely the sole remaining question submitted by the High Court in Case C-306/88. It is asked in the event (which has not arisen) that the national measure in question should be found to contravene Article 30 of the Treaty. In such a case, does the prohibition imposed by Community law extend to the application of the legislation to domestic products? According to Rochdale Borough Council, the answer to that must be in the negative: were the Court to declare the Sunday trading provisions to be incompatible with Article 30 of the EEC Treaty and not justified under Article 36, the provisions would become inapplicable only to products imported from other Member States. This approach seems to me to be quite impractical. In the case of simple products the distinction is already difficult to draw (how does one prove for example that a specific kind of fruit which is also grown in Great Britain is or is not imported?), and in the case of composite products, for example machines, cars etc., this method of proceeding is entirely unrealistic. Nevertheless, it must be accepted that Community law is not applicable to a purely domestic situation. The extent to which partial incompatibility of the measure in question with Community law affects the overall validity of the measure within a Member State is a question of national law.
Conclusion
35. On the basis of the foregoing considerations I propose that the Court should reply to the questions referred to it in the present cases as follows:
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).