Report for the Hearing in Case C-306/88

I — Facts and procedure

1. Injunction proceedings have been brought by Rochdale Borough Council (hereinafter Council) before the Queen's Bench Division of the High Court of Justice concerning the contravention by Stewart John Anders (Mr Anders) of Section 47 of the Shops Act 1950 by his opening and continuing to open for the serving of customers on Sunday for transactions other than those mentioned in the Fifth Schedule to that Act retail shop premises situated at Dale Mill. The Council is therefore seeking to obtain from the High Court an injunction to restrain Mr Anders by himself, his servants or agents, or otherwise howsoever from opening a shop or causing or permitting others to open a shop at Dale Mill for the serving of customers on a Sunday save for the transactions listed in the Fifth Schedule to the Shops Act 1950.

2. Section 47 of the Shops Act provides that every shop shall, save as otherwise provided by this part of the Act, be closed for the serving of customers on Sunday. Provided that a shop may be open for the serving of customers on Sunday for the purposes of any transaction mentioned in the Fifth Schedule to this Act. In that connection the Fifth Schedule to the Shops Act 1950 contains a list of items for the sale of which a shop is permitted to open on Sunday. Those articles are intoxicating liquors, certain foodstuffs, tobacco, newspapers and other products of everyday consumption.

3. The High Court found the following facts:

4. In the national proceedings the Council maintains that Section 47 of the Shops Act 1950 is not a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 30, since in the absence of common rules relating to the marketing of a product it is for the Member States to regulate all matters relating to its marketing on their own territory, and Section 47 applies to domestic and imported products alike and does not put imported products at any disadvantage compared with identical or competing domestic products. Moreover, Section 47 must be recognized as necessary to satisfy certain mandatory requirements, and as being justified under Article 36 on grounds of public morality, public policy or the protection of health and life of humans. In any event, the provision at issue does not constitute an arbitrary discrimination or a disguised restriction on trade between Member States and there is no infringement of the principle of proportionality.

5. For his part, Mr Anders considered that Section 47 of the Shops Act 1950 is a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 30, inasmuch as the ban on Sunday trading is capable of hindering intra-Community trade. That infringement of Article 30 cannot be justified under Article 36, first because it does not come within any of the finite categories of exemptions which must be strictly construed; secondly, even if it was brought within one of those categories, it would not escape the prohibition because to do so it must not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States, which would be the case here; thirdly, because the prohibition on Sunday trading is more restrictive of trade than is necessary in order to attain the protection of the principle referred to in Article 36, and that the prohibition cannot be justified as reasonable, regard being had to the extraordinary anomalies in its application and effect.

6. In the light of the foregoing considerations, the Queen's Bench Division of the High Court of Justice requested the Court of Justice to give a preliminary ruling on the following questions:

7. The order for reference was registered at the Court Registry on 19 October 1988.

8. In accordance with Article 20 of the Protocol of the Statute on the Court of Justice of the EEC, written observations were submitted by Rochdale Borough Council, represented by Michael J. Beloff, QC, and Stephen Sauvain, Barrister, by Mr Anders, represented by David Vaughan, QC, and William Elland, Barrister, by the United Kingdom, represented by Nicholas Paines, Barrister, and S. J. Hay, Treasury Solicitor's Department, and by the Commission of the European Communities, represented by Eric L. White, acting as Agent.

9. After the order for reference had been made, the Court in its judgment in Case C-145/88 (Torfaen Borough Council v B & Q Plc [1989] ECR 3851) held that Article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind. Similarly, in judgments of 28 February 1991, the Court also held that Article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting the employment of staff on Sundays (Case C-312/89 Conforama [1991] ECR I-997), or on Sundays after 12 noon (Case C-332/89 Marchandise [1991] ECR I-1027). Following the communication of these three judgments to the national court, the latter, by letter of 13 June 1991 registered at the Court Registry on 18 June 1991, stated that, whilst the three first questions were no longer relevant, in particular in the light of the judgment in Torfaen Borough Council v B & Q Plc, it considered that a decision was still necessary on the fourth question.

10. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Written observations submitted to the Court

1. On the fourth question, the Council, the plaintiff in the national proceedings, maintains that if, contrary to what it considers to be correct in law, the Court of Justice were to hold the substantive provisions of the Shops Act 1950 to be inconsistent with Article 30 of the Treaty, that would only be the case to the extent to which they have an equivalent effect to a quantitative restriction on imports from Member States. In fact, Article 30 does not concern imports into the Member States of goods from countries situated outside the European Community, and it cannot be relied upon to allow the sale of such goods in circumstances which contravene domestic legislation.

2. Mr Anders, the defendant in the national proceedings, for whom the fourth question is academic, relies on the case-law of the Court, and in particular the judgments in Case 130/80 Kelderman [1981] ECR 527, and Case 286/81 Oosthoek's Uitgeversmaatschappij BV [1982] ECR 4575, and Case 407/85 Drei Glocken [1988] ECR 4275, in support of the argument that the effect of a measure on domestic products can be viewed in isolation from the effect of that measure upon imported products. In other words, since the provisions potentially contrary to the free movement of goods must be considered by the Court in the context of their cumulative effect on intra-Community trade, the provisions of legislation such as that in the present case cannot be severed so as to apply only to domestic products.

3. The United Kingdom considers that the fourth question does not call for a reply.

4. In its observations, the Commission adduces no arguments on the fourth question submitted by the national court.

1 Language of the case: English.