Opinion of Advocate General Van Gerven

Mr President,

Members of the Court,

1. These joined cases are concerned with two references from the Pretura Circondariale di Roma, Castelnuovo di Porto Division, for a preliminary ruling on the compatibility of Italian Law No 558 of 28 July 1971 with Articles 30 to 36 of the EC Treaty.

The Italian rules on the closure of shops

2. Law No 558 regulates business opening times. Article 1(2)(a) of that Law provides for compulsory closure on Sundays and public holidays. Article 2 extends that prohibition to neighbourhood markets, street trading from habitual premises and, in general, any trading from fixed premises or by itinerant traders.

3. Law No 558 provides for derogations ratione materiae, rattorte loci and rattorte temporis. Ratione materiae, shops which sell monopoly goods, newsagents and motorway petrol stations are not covered by the prohibition laid down by law, whilst restaurants and patisseries may be exempted. Flowers may be sold in the morning on Sundays and on public holidays that occur during the week, while bakeries may also open in the morning on those public holidays.

4. Law No 558 is a framework law which leaves the implementation of the above principles to the authorities of individual regions. Detailed provisions concerning business opening times are laid down in regional laws or decisions, such as Laws No 58/1971 and No 37/1978 of the Lazio Region and Decision No 839 of 10 October 1983 of the Veneto Region, which are at issue in this case. It is for the mayors of the municipalities in which the shops are located to penalize infringements of the rules laid down.

Facts and questions submitted for a preliminary ruling

5. Punto Casa SpA owns a supermarket in Capena in which it employs approximately 100 staff. The supermarket is closed on Mondays, but open on Sundays and public holidays. It is clear from the order for reference that Sunday sales constitute approximately one-half of turnover. On several occasions, the mayor of Capena has ordered the supermarket to close on account of repeated infringements of the prohibition on Sunday trading, as laid down by Law No 558 and Regional Laws Nos 58/1971 and 37/1978 of the Lazio Region.

6. Both Punto Casa and PPV requested the Pretura to order the municipal authorities of Capena and Torri di Quartesolo, by way of an interim measure, to set aside provisionally the statutory provisions relating to compulsory closure on Sundays and public holidays. In that connection the Pretura Circondariale di Roma referred the follow questions to the Court for a preliminary ruling:

Answer to the questions

7. The first question is concerned with the compatibility of national legislation on the closure of shops, such as the Italian legislation, with Article 30 of the EC Treaty. Clearly swayed by the arguments put forward by Punto Casa and PPV, the Pretura suggests in its questions and in the grounds of the order for reference that the Italian legislation (a) may lead to a fall in imports of products from other Member States and (b) is not based on social grounds since it does not prohibit working on Sundays and public holidays. In addition, it emphasizes that the legislation in question (c) affects large stores more severely than other categories of traders.

8. I have already dealt with all the arguments put forward in the present case in my Opinion of 16 March 1994 in Joined Cases C-401/92 (Tankstation 't Heukske V. O. F.) and C-402/92 (J. B. E. Boermans), judgment of 2 June 1994 [1994] ECR I-2199, I-2201. Those cases were also concerned with national legislation regulating business hours which was alleged to have an adverse effect on imports of products from other Member States. There too, it was argued that the national legislation in question could not be justified on social grounds (because it did not prohibit working but only the sale of certain products) and that it affected some traders more severely than others.

9. By way of reply to the three aforesaid concerns (paragraph 7, above) specifically referred to by the Pretura, I would lay emphasis once again on the following points in my Opinion of 16 March 1994. First of all, it is apparent from the judgment in Keck and Mithouard that the fact that national legislation may restrict the volume of sales of products from other Member States is not sufficient to characterize it as a measure having equivalent effect to a quantitative restriction on imports.

Conclusion

10. In conclusion, I propose that the Court answer the questions submitted by the Pretura Circondariale di Roma as follows:

1 Original language: Dutch.

2 Published in the Official Journal of the Italian Republic No 200 of 9 August 1971.

3 Article 6(1) and (2) of Law No 558.

4 Article 6(3).

5 Article 1(2)(a).

6 Artice 2(1) and (3).

7 Article 3.

8 Article 6(1).

9 In particular, they may decide that groceries may open in the morning on the public holiday which is best suited for that purpose (see Article 1(2)(d].

10 Article 4.

11 Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097.

12 Case C-292/92 [1993] ECR I-6787.

13 See the judgment in Keck and Mithouard, at paragraph 13, and the Opinion of 16 March 1994, paragraph 22.

14 Opinion of 16 March 1994, paragraph 26.

15 Opinion of 16 March 1994, paragraph 21.

16 Opinion of 16 March 1994, paragraph 23.