Opinion of Mr Advocate General Van Gerven delivered on 22 November 1990

1 Original language. Dutch

2 See the judgment of 20 April 1988 m Case 204/87 Bekaert [1988] ECR 2029, at paragraph 5. and the judgment or 7 March 1990 in Case C-69/88 Kranu \Ontvanger der Direcle Belastingen [1990] ECR I-583- at paragraphs 7 and 8

3 [1989] ECR 3851

4 See Annex 2 to the observations of the defendants in the main proceedings.

5 That principle was laid down by the Court in general terms (albeit in connection with freedom of establishment) in its judgment of 8 December 1987 in Case 20/87 Ministère Public v Cauchará [1987] ECR 4879, at paragraphs 11 and 12; see also, for a recent application of that principle in connection with the freedom to provide services, the judgment of 3 October 1990 in Joined Cases C-54/88, C-91/88 and C-14/89 Nino [1990] ECR 3537, at paragraphs 10 and 11.

6 Judgment of 11 July 1985 in Joined Cases 60 and 61/84 Cinétbèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, in particular at paragraph 22.

7 This wording is more precise, in my view, than that referred to in the operative part of the judgment, quoted in paragraph 4 above, in which there is no reference to what is necessary but only to the effects intrinsic to rules of that kind. The criterion of necessity has a normative content which the effects criterion lacks.

8 Judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, at paragraph 5.

9 Opinion delivered at the sitting on 29 June 1989, at paragraphs 13 to 15.

10 That would not be the case here if it became apparent that in the case of the product concerned the trader made good on other days of the week the loss of turnover resulting from the prohibition on Sunday working.

11 See the judgment of 16 May 1989 in Case 382/87 Buet v Ministère Public [19891 ECR 1235, at paragraphs 7 to 9, as well as the B & Q judgment.

12 That is clearly the case in B & Q, where the existence of a justification is sought in the light of the possible effects on Community trade which may result from the national rules under examination; see the operative part of the judgment.

13 Judgment of 14 July 1981 in Case 155/80 Oebel [1981] ECR 1993, at paragraphs 19 and 20. See also the judgment of 25 November 1986 in Case H8/85 Direction Générale des Impôts v Forest [1986] ECR 3449, at paragraph 19.

14 Judgment of 31 March 1982 in Case 75/81 Blesįen v Belgium [1982] ECR 1211, at paragraph 9.

15 See the judgment of 11 July 1990 in Case C-23/89 Quietlynn v Southend Borough Council [1990] ECR 3059, at paragraph 11.

16 It is clear from the last two situations that the Court accepts that one trader's loss of turnover can be made up for by additional sales made by other traders in the same Member State. In that regard the Court relies on simple possibilities resulting from the scope of the legislation examined (see, for instance, paragraph 19 of the judgment in OebeĻ cited in footnote 12), without requiring statistical evidence, which in practice cannot easily be furnished.

17 Sec, for instance, the judgments of 13 March 1984 in Case 16/83 Prantl [1984] ECR 1299, and of 14 October 1980 in Case 812/79 Attorney General v Burgoa [1980] ECR 2787, especially at paragraph 13.

18 See, for instance, the judgment of 20 September 1990 in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR 3461, at paragraph 11.

19 In that respect the B & Q judgment leaves more than one question unanswered, as is illustrated by the reference in Case C-304/90 which has just been lodged at the Registry, in which the Reading and Sonning Magistrates' Court asks a series of detailed questions on the interpretation of that judgment and, in particular, the application of the criterion of proportionality (see the second question submitted for a preliminary ruling in that case).

20 See, for instance, the judgment of 11 July 1985 in Ciné-théque, already referred to in footnote 5, at paragraphs 22 and 23, and the judgment of 14 July 1988 in Case 407/85 3 Glocken v USL Centro-Sud [1988] ECR 4233, at paragraphs 12 to 27. Sec also the judgment of 7 March 1990 in Case C-362/88 GB-InnO-BM v Conféderation du Commerce Luxembourgeois [1990] ECR I-667.

21 If ils purpose is the protection of the health of humans, there is no justification for requiring the compulsory day of rest to be taken on the same day: see below.

22 Introduced by the ludgment of 20 February 1979 in Case 120/78 Rewe Zentrale v Bundesmonopolverwaltung fur Branntwein [1979J ECR 649, at paragraph 8.

23 Judgment of 14 July 1981, supra, footnote 12

24 See also the remainder of this passage, in paragraph 12 below.

25 See, inter alia, the judgment of 11 July 1985 in Cinéthèque, cited in footnote 5 above.

26 See the B & Q judgment, cited above, at paragraph 14, final sentence That expression can also be found in other judgments: sec, for instance, the Qureitlynn judgment, cited in footnote 14, at paragraph 11. the Krantz judgment, cited in footnote 1, at paragraph 11, and the Cinetbèque ludgment, cued in footnote 5, at paragraph 21 (in which u was stated that this was the case with regard to any system applicable without distinction to domestic and imponed products).

27 For more details on that point, see my Opinion in Case C-145/88, referred to in footnote 8, at paragraphs 17 to

28 It might well be regarded as a disguised restriction on trade between Member States within the meaning of the last sentence of Article 36 of the Treaty, in which case none of the justifications under Article 30 or Article 36 can be relied upon. See the judgment of 3 December 1981 in Case 1/81 Pfizer v Euńm-Pharm [1981] ECR 2913, in which the Court considered that Article 36 prohibited the use of a trade mark so as to create an artificial partitioning of the markets within the Community (see also the Opinion of Mr Advocate General Capotoni in that case, in particular at p. 2935).

29 See, for instance, che judgment of 20 May 1976 in Case 104/75 De Peijper [19761 ECR 613, at paragraphs 21 and 22, and the judgment of 8 February 1983 in Case 124/81 Commission v United Kingdom [1983] ECR 203, at paragraph 16. See also the judgment in Buet, cited in footnote 10, at paragraphs 11, 12 and 15.

30 See also my Opinion in Case C-169/89 Gourmetterie van den Burg [1990] ECR 2143, at paragraph 8 et seil.

31 Sec the case-law cited in footnote 19

32 See, for instance, in addition to the Oebel judgment (cited above in footnote 12), the judgment of 15 December 1982 in Case 286/81 Oosthoek [1982] ECR 4575, the judgment of 10 March 1983 in Case 172/82 Fabricants Raffineurs d'Huile de Graissage v Inter-Huiles [1983] ECR 555, and the judgment of 7 February 1984 in Case 237/82 Jongeneel Kaas v Netherlands [1984] ECR 483.

33 See, for instance, the judgment of 1 October 1987 in Case 311/85 Vereniging van Vlaamse Reisbureaus v Sociale Dienst van de Plaatselijke en Gewestelijke Overbeidsdiensten [1987] ECR 3801, in particular at paragraphs 9 and 10.