Semeraro Casa Uno Srl and Others v. Sindaco del Comune di Erbusco and

Others (Joined Cases C 418-421, 460-462 & 464/93, C 9-11, 14-

15, 23-24 and 332/94)

Before the Court of Justice of the European Communities (Fifth Chamber)

ECJ (5th Chamber)

(Presiding, Edward P.C.; Gulmann ( Rapporteur), Jann,

Sevón and Wathelet JJ.) Mr Giorgios Cosmas, Advocate General

20 June 1996

Reference from Italy by the Pretura Cirondarial di Roma (Rome District

Magistrates' Court), Sezione Distaccata di Castelnuovo di Porto (Castelnuovo di Porto Division), under Article 177 E.C.

Imports. Indirect restrictions. Regulation of trade. Inter-State trade. National rules whose effect is to limit the marketing of a product generally, and consequently its importation, cannot on that ground alone be regarded as limiting access to the market for those imported products to a greater extent than for similar national products. The fact that national legislation may restrict the volume of sales generally, and hence the volume of sales of products from other Member States, is not sufficient to characterise such legislation as a measure having an effect equivalent to a quantitative restriction. [24] Keck and Mithouard (C 267-286/91): [1993] I E.C.R. 6097, [1995] 1 C.M.L.R. 101, followed. Imports. Indirect restrictions. Discrimination. Sunday trading. National legislation restricting the opening of shops of Sundays pursues an aim which is justified under Community law. Such legislation reflects certain choices relating to particular national or regional socio-cultural characteristics which are for the Member States to make in compliance with the requirements of Community law. [25]

Imports. Indirect restrictions. Discrimination. Sunday trading. Shop hours. Justifiable national aim. Article 30 E.C. does not apply to national rules on the closing times of shops applicable to all traders exercising an activity on national territory and affecting in the same way in law and in fact the marketing of national products and products from other Member States. [28] *649 Council of the City of Stoke-on-Trent and Norwich City Council v. B. & Q Plc (C-169/91): [1992] I E.C.R. 6635, [1993] 1 C.M.L.R. 426, followed. Product safety. Technical standards. Shop hours. Directive 83/189 does not apply to national rules which do not lay down the characteristics required of a product but are confined to regulating the closing times of shops. [38] The applicants, who operated large shopping centres, were penalised for opening their premises on Sundays and public holidays. Under Italian law, all shops were obliged to close on those days save in exceptional circumstances. The applicants sought to challenge the Italian legislation on the grounds that it was incompatible with Article 30 E.C., since a significant proportion of their turnover related to goods from other Member States. The court had ruled in Punto Casa and Ppv that Article 30 did not apply to national legislation on the closing times of shops which applied to all traders operating in the national territory and which affected in the same manner, in law and in fact, the marketing of domestic products and those from other Member States. In this case, the national court referred questions in relation to Article 30 which were substantively identical to those already dealt with in the Punto Casa and Ppv case, the reason being that the national court considered that the Italian legislation did not, as a matter of fact, have the same effect on the marketing of national products and the marketing of products from other Member States. In that regard, the national court argued that the Italian legislation tended to have a greater effect on the large, out-of-town shopping centres, which relied more on weekend shoppers, than on the smaller, more centrally-located shops. It was claimed that, as a result, consumption of products from other Member States suffered, because the smaller shops stocked more domestic products than imported products. The court held that: (1) the observations made by the national court had already been considered in Punto Casa and Ppv, and no new factor had emerged to justify a new assessment of the Italian legislation; (2) the fact that national legislation restricted the volume of sales generally, and hence restricted the volume of sales of products from other Member States, was not enough for it to contravene Article 30: there was no evidence that the aim of the legislation at issue was to regulate trade in goods between Member States or that, viewed as a whole, it could lead to unequal treatment between national products and imported goods as regards access to the market; (3) moreover, the aim pursued by the Sunday-opening legislation was justified under Community law; (4) Article 52 E.C. and Directive 64/223 did not preclude national rules on the shop closing times, since

the rules affected all traders, were not designed to regulate the conditions concerning the establishment of undertakings, and any restrictive effects on freedom of establishment were too uncertain and *650 indirect; (5) Directive 83/189 was irrelevant, since the national rules were not concerned with regulation of the characteristics required of products. Representation Franco di Maria, Gianfranco Maestosi, Federico Tedeschini and Arturo Mancini, of the Rome Bar, for Semeraro Casa Uno Srl, Semeraro Mobili SpA, Città Convenienza Bergamo Srl and Il 3C Centro Convenienza Casa Srl, the applicants in the main proceedings in Cases C 418-419 & 460-462/93. Franco di Maria, Gianfranco Maestosi and Federico Tedeschini, of the Rome Bar, for Consorzio Centro Commerciale "Il Porto", the applicant in the main proceedings in Case C-332/94. Grazio Serini, of the Bari Bar, and Antonio Mancini, of the Rome Bar, for Comune di Terlizzi, the defendant in the main proceedings in Case C-9/94. G. Ricapito, of the Rome Bar, for the Sindaco del Comune di Adria. Vassilios Kondolaimos, Deputy Legal Adviser with the State Legal Service, and Christina Sitara, Representative of the State Legal Service in judicial proceedings, acting as Agents, for the Greek Government. Richard Wainwright, Principal Legal Adviser to the E.C. Commission, and Antonio Aresu, of the Legal Service of the Commission, acting as Agents, for the Commission. Cases referred to in the judgment: 1. Punto Casa SpA v. Sindaco del Comune di Capena and Comune di Capena (C 69 & 258/93), 2 June 1994: [1994] I E.C.R. 2355. 2. Keck and Mithouard (C 267-286/91), 24 November 1993: [1993] I E.C.R. 6097, [1995] 1 C.M.L.R. 101. 3. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436. 4. Council of the City of Stoke-on-Trent and Norwich City Council v. B & Q Plc (C-169/91), 16 December 1992: [1992] I E.C.R. 6635, [1993] 1 C.M.L.R. 426. 5. Conradi v. Direction de la Concurrence et des Prix des Hauts-de-Seine and Ministere Public (198/86), 12 November 1987: [1987] E.C.R. 4469, (1989] 2 C.M.L.R. 155. Further cases referred to by the Advocate General: 6. Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (120/78), 20 February 1979: [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494. 7. H. Krantz GmbH and Co v. Ontvanger der Directe Belastingen (69/88), 7 March 1990: [1990] I E.C.R. 583. 8. Peralta (C-379/92), 14 July 1994: [1994] I E.C.R. 3453. 9. DIP SpA v. Municipality of Bassano del Grappa (C 140-142/94), 17 October

1995: [1995] I E.C.R. 3257. 10. Esso Espanola SA v. Comunidad Autonoma de Canarias (C-134/94), 30 November 1995: [1995] I E.C.R. 4223. 11. Torfaen Borough Council v. B & Q Plc (145/88), 23 November 1989: [1989] E.C.R. 3851, [1990] 1 C.M.L.R. 337 *651 . 12. Reading Borough Council v. Payless DIY Ltd (C-304/90), 16 December 1992: [1992] I E.C.R. 6493, [1993] 1 C.M.L.R. 426. 13. Rochdale Borough Council v. Anders (C-306/88), 16 November 1992: [1992] I E.C.R. 6457, [1993] 1 C.M.L.R. 426. 14. Conforama and Others (C-312/89), 28 February 1991: [1991] I E.C.R. 997, [1993] 3 C.M.L.R. 746. 15. Marchandise and Others (C-332/89), 28 February 1991: [1991] I E.C.R. 1027, [1993] 3 C.M.L.R. 746. 16. Tankstation 't Heukske VOF v. JBE Boermans [C 401-402/92), 2 June 1994: [1994] I E.C.R. 2199. 17. Belgapom (C-63/94), 11 August 1995: [1995] I E.C.R. 2467. 18. Bekaert (204/87), 20 April 1988: [1988] E.C.R. 2029, [1988] 2 C.M.L.R. 655. 19. E.C. Commission v. France (270/83), 28 January 1986: [1986] E.C.R. 273, [1987] 1 C.M.L.R. 401. 20. E.C. Commission v. Belgium (221/85), 12 February 1987: [1987] E.C.R. 719, [1988] 1 C.M.L.R. 620. 21. Kraus v. Land Baden-Württemberg (C-19/92), 31 March 1993: [1993] I E.C.R. 1663.

Opinion of Mr Advocate General Cosmas 1. In these cases the court has been asked, in a series of orders from the Pretura Circondariale, Sezione Distaccata di Castelnuovo di Porto (District Magistrates' Court, Castelnuovo di Porto Division), Rome, to give a preliminary ruling on the interpretation of Articles 30, 36 and 52 of the Treaty, Council Directive 64/223 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade [FN1] and Council Directives 83/189 [FN2] and 88/182 [FN3] laying down a procedure for the provision of information in the field of technical standards and regulations. FN1 [1963-4] O.J. Spec. Ed. 123. FN2 [1983] O.J. L109/8. FN3 [1988] O.J. L81/75. 2. By order of 10 November 1993 the Court of Justice decided to join Cases C-418/93, C-419/93, C-420/93 and C-421/93. By another order of 27 January 1994 the court decided to join the said cases with Cases C 460-462, C-464/93, C-9/94, C-10/94, C-11/94 & 14-15/94. In a subsequent order of 23 February 1994 the court decided to join Cases C-23/94 and C-24/94. Lastly, by order of 19 October

1995 the court decided to join the latter two cases, together with Case C-332/94, to all the other cases referred to above.

I. The Disputed Issue 3. The above references for a preliminary ruling were made in the course of appeals by various undertakings which operate large shopping centres against local mayors who, rejecting requests from the *652 above undertakings, had refused to permit the opening of the centres on Sundays, warning them at the same time that if the prohibition was infringed they would be subject to the penalties laid down by law. That refusal by the mayors in question was based on Italian Act 558 of 28 July 1971, [FN4] which regulates the opening hours of commercial premises. Article 1(2)(a) thereof prohibits the opening of shops on Sundays and public holidays. In cases of infringement of the above provisions, Article 10 of the Act provides for administrative penalties. In cases of repeated infringement, it is possible to require the commercial premises to cease operating for up to 15 days. FN4 [1971] 200 Guri (Official Gazette of Italy). Act 558 above is a framework law which entrusts application of the above prohibition to regional bodies, which are responsible for laying down the detailed rules regulating the opening hours of shops at local level. Imposition of the penalties laid down by law is entrusted to the mayors or community leaders for the area in which the shops in question operate. 4. The appellants have questioned, before the Pretura, the compatibility of the Italian Act with Community law, in particular with the provisions referred to above. In the circumstances the Pretura decided to stay the proceedings and refer certain questions to the Court of Justice for a preliminary ruling pursuant to Article 177 E.C.

II. Questions Referred for a Preliminary Ruling 5. In the context of the disputes set out above, by similar orders of 18 July 1993, 28 October 1993, 11 November 1993, 2 December 1993 and 16 December 1993, [FN5] the Pretura Circondariale di Roma, Sezione Distaccata di Castelnuovo di Porto, asked the Court of Justice to give a preliminary ruling on the following questions: 1. Does a provision of national law which (save for certain products) requires retail shops to close on Sundays and public holidays, but does not prohibit working in such shops on those days (and imposes the penalty of forced closure on shops in breach of that requirement), thus significantly reducing their sales, including sales of goods produced in other Member States of the Community, with a consequent reduction in the volume of imports from such States, constitute: (a) a measure having an effect equivalent to a restriction on imports within the meaning of Article 30 of the Treaty of Rome and secondary rules of Community

law adopted in pursuance of the principles laid down therein; or (b) a means of arbitrary discrimination or a disguised restriction on trade between Member States; or (c) a measure which is disproportionate and inappropriate to the socio-ethical aim pursued by the provision of national law; given that: -- large-scale distributors and organised distribution centres (the *653 category to which the applicants belong) on average sell a greater quantity of products imported from other Member States than that sold by small and medium-sized traders; -- the turnover achieved by large-scale distributors and organised distribution centres on Sundays cannot be compensated for by substitute purchases by customers on other days of the week, such purchases being made within a commercial network which in general obtains its supplies from domestic producers? FN5 [1993] O.J. L312/6 and [1994] O.J. L76/4. 2. If the answer to Question 1 is in the affirmative, does the national measure in question fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or other derogations provided for by Community law? In addition, by order of 10 October 1994 [FN6] (Case C-332/94) the Pretura referred the following questions which are in part similar to the preceding questions: FN6 [1994] O.J. L392/3. Whereas: -- large-scale distributors and organised distribution centres, which are mostly located on the periphery of, or outside, large towns, offer for sale and sell on average a greater quantity of products imported from other Member States than is offered for sale and sold by small and medium-sized traders, who unlike the former are widely scattered throughout Italy, in both town and country; -- sales by large-scale distributors and organised distribution centres on Sundays alone, in the brief periods in which they are allowed to sell on that day, are greater than sales made by those businesses during the working week; -- sales which large-scale distributors and organised distribution centres cannot make on public holidays are not compensated for by those which they make during the working week, and therefore unsatisfied customer demand is directed towards other trade outlets (made up of small and medium-sized businesses closer to consumers and easy to reach even on public holidays) which, however, in general obtain their supplies only from domestic producers;

Question 1 Does a provision of national law which (save for certain products) requires retail shops to close on Sundays and public holidays, but does not prohibit working in

such shops even on those days (and penalises breach of that requirement by forced closure and withdrawal of licences), constitute: (a) a measure having an effect equivalent to a restriction on imports within the meaning of Article 30 of the Treaty of Rome and secondary rules of Community law adopted in pursuance of the principles laid down therein; or *654 (b) a means of arbitrary discrimination or a disguised restriction on trade between Member States; or (c) a measure which is disproportionate and inappropriate in relation to the socio-ethical aim pursued by the provision of national law; or (d) an infringement of Article 52 EEC concerning freedom of establishment and of subsequent Community legislation enacted in implementation of that principle; or (e) an infringement of Article 2(2) of Directive 64/223 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade; or (f) an infringement of Directives 83/189 and 88/182 concerning the elimination of technical barriers to trade between the Member States, in view of the fact that the prohibition on Sunday opening of shops is a general prohibition in appearance only, which is in fact subject to exemptions for a series of products which are, except in a very few unavoidable instances, exclusively of domestic origin?

Question 2 If the answer to the first question, in each of its parts, is in the affirmative, does the national measure fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or within other derogations provided for by Community law? 6. If we exclude Case C-332/94, in which the question referred to the court, refers to other Community provisions as well as to Articles 30 and 36 of the Treaty, the court has already answered those questions in its judgment of 2 June 1994 Punto Casa and Ppv. [FN7] That judgment was delivered following a preliminary reference from the Pretura Circondariale di Roma (Sezione Distaccata di Castelnuovo di Porto), which, by orders of 16 December 1992 and 22 March 1993 had referred to the court questions very similar to the above. After that judgment had been delivered, the court asked the Pretura to clarify whether it wished to maintain the questions referred for a preliminary ruling in all the above cases apart from Case C-332/94. FN7 Joined Cases C 69 & 258/93: [1994] I E.C.R. 2355. In a letter of 22 July 1994, the Pretura replied that it wished to maintain the questions which it had referred to the court. In that letter the Pretura argues that the court's Punto Casa and Ppv judgment does not cover all the aspects and issues arising from the cases before it with regard to the compatibility of the Italian Act with the provisions of Community law and, in particular, with Articles 30 and 36 of the Treaty. The Pretura explains that large shopping centres are mostly located on the periphery of, or outside, large towns, so that it is not easy

for consumers to reach them on workdays. Compared with small shops, which are widely scattered in the suburbs and cater for a limited *655 consumer public, large shopping centres offer and sell, on average, much greater quantities of imported goods from other Member States than are offered by small shops which, as a rule, supply national products. In the Pretura's view the consequence is that demand is directed towards national products at the expense of foreign products, since small shops stock very few such products.

III. Replies to the Questions Referred to the Court

Articles 30 and 36 of the Treaty 7. The questions referred by the national court ask whether national legislation such as that at issue in the main proceedings falls within the scope of application of Article 30 of the Treaty. That article prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States. In accordance with the well-known formulation in Dassonville, [FN8] "all trading rules which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade" are to be regarded as measures having an effect equivalent to quantitative restrictions. Furthermore, according to the case law of the court, commencing with the Cassis de Dijon judgment, [FN9] national rules of a Member State may, even if they apply without distinction to all products, be contrary to Article 30 where they hinder intra-Community trade, unless their application can be justified by mandatory requirements relating to the public interest. FN8 Case 8/74: [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436, Para. [5]. FN9 Case 120/78, Rewe-Zentral v. Bundesmonopolverwaltung für Branntwein: [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494. 8. In the Keck and Mithouard judgment [FN10] the court restricted the scope of application of that case law, distinguishing between: -- on the one hand, restrictive national rules concerning the conditions (such as those relating to designation, form, size, weight, composition, etc.) to which goods coming from other Member States, where they are lawfully manufactured and marketed, must conform; -- on the other hand, national provisions prohibiting or restricting certain selling arrangements which are not such as to hinder intra-Community trade, since they do not relate to the actual subject-matter of trade within the Community. FN10 Joined Cases C 267 & 268/91: [1993] I E.C.R. 6097, [1995] 1 C.M.L.R. 101. 9. As regards the first category of national measures, the court, referring to the above-cited Cassis de Dijon judgment held that such rules fall within the scope of application of Article 30 and constitute prohibited measures of equivalent effect

unless their application can be justified by a public-interest objective. [FN11] As to the second category of national measures, the court considered that they fall outside the scope of application of Article 30 of the Treaty so long as they apply to *656 all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. According to the court, provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. [FN12] FN11 See Para. [15] of Keck and Mithouard. FN12 See Paras. [16]-[17] of Keck and Mithouard. See also para. [12] of Punto Casa and Ppv, cited above. 10. Apart, however, from those two categories, there is a third category of national measures which can fall under the Dassonville case law, outside either of the above two categories. Examples of such measures are national legislation which authorises the authorities to seize goods sold on instalment terms with reservation of title even if those goods are from a supplier established in another Member State who has title to the goods, [FN13] national legislation prohibiting all vessels, regardless of the flag which they fly, from discharging harmful chemical substances into the territorial and internal waters of the State in question, and imposing the same prohibition on the high seas only on vessels flying the national flag, penalising infringement by masters of vessels who are nationals of that State by suspending their professional qualification, [FN14] the requirement of a licence to open a shop, [FN15] and a national provision requiring those wishing to trade in petroleum products on an island territory of a Member State to supply a certain number of islands in that State. [FN16] National measures in that category may not as a rule be regarded as contrary to Article 30 since they do not have as their object the regulation of trade with other Member States and any restrictive effects which they might have on the free movement of goods are usually too uncertain and indirect for the obligation they lay down to be regarded as being capable of hindering trade between Member States. [FN17] FN13 See Case C-69/88, Krantz: [1990] I E.C.R. 583. FN14 Case C-379/92, Peralta: [1994] I E.C.R. 3453. FN15 Joined Cases C 140 & 142/94, DIP and Others [1995] I E.C.R. 3257. FN16 Case C-134/94, Esso Española v. Comunidad Autónoma de Canarias: [1995] I E.C.R. 4223.

FN17 See Krantz, Peralta and DIP referred to above. See also the recent judgment in Esso Española, cited above, and my Opinion of 28 September 1995 in that case. 11. Thus when the question of the application of Article 30 is raised, it is necessary to examine which of the above categories covers the national measure at issue and in particular whether it is a selling arrangement within the meaning of Keck and Mithouard. On that point it should be recalled that national measures such as that before the court had already, prior to that judgment, been examined by the court, which had thus had the opportunity to develop a considerable amount of case law on that subject. In its decision in Torfaen Borough Council v. B & Q, [FN18] the court held that the *657 prohibition laid down in Article 30 of the Treaty does not apply to national rules prohibiting retailers from opening their premises on Sundays where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind. The court confirmed that position in its judgments in B & Q [FN19] and Payless DIY and Others [FN20] which, like the preceding judgment, concerned United Kingdom provisions prohibiting Sunday trading. [FN21] Further related judgments are Conforama and Others [FN22] and Marchandise and Others, [FN23] concerning measures (French and Belgian respectively) prohibiting the employment of staff on Sundays. In both those cases the court held that Article 30 of the Treaty does not apply to measures of that type. FN18 Case C-145/88: [1989] E.C.R. 3851, [1990] 1 C.M.L.R. 337. FN19 Case C-169/91: [1992] I E.C.R. 6635, [1993] 1 C.M.L.R. 426. FN20 Case C-304/90: [1992] I E.C.R. 6493, [1993] 1 C.M.L.R. 426. FN21 See also Case C-306/88; Anders: [1992] I E.C.R. 6457, [1993] 1 C.M.L.R. 426. FN22 Case C-312/89: [1991] I E.C.R. 997, [1993] 3 C.M.L.R. 746. FN23 Case C-332/89: [1991] I E.C.R. 1027, [1993] 3 C.M.L.R. 746. 12. That approach was confirmed in cases following Keck and Mithouard. In its judgment of 2 June 1994 in Boermans, [FN24] which concerned Netherlands rules on the opening hours of petrol stations, and in its Punto Casa and Ppv judgment which, as stated above, concerned the same provision of Italian Act 558 as is at issue in these cases, prohibiting the opening of shops on Sundays and public holidays, the court held that the measures in question are not covered by the prohibition in Article 30 of the Treaty. In those judgments the court considered that the said measures of Dutch and Italian law constitute selling

arrangements which satisfy the conditions laid down in Keck and Mithouard. In particular, in Punto Casa and Ppv, the court stated that the legislation at issue "applies, irrespective of the origin of the products in question, to all the traders concerned and does not affect the marketing of products from other Member States any differently from the marketing of domestic products". [FN25] Consequently, the question of the application of Article 30 of the Treaty to national rules prohibiting the opening of shops to certain hours or, as the measure at issue, to certain days of the week, has been resolved in the case law. FN24 Joined Cases C 401 & 402/92: [1994] I E.C.R. 2199. FN25 Para. [14] of Punto Casa and Ppv. 13. In my view, too, such a measure is covered by Keck and Mithouard. The national legislation at issue does in fact constitute a selling arrangement within the meaning of that case law. It is a measure concerning the conditions governing the time, place and method under which goods are sold to consumers. The rules prohibit certain categories of retailers from offering for sale specified products on certain days (Sundays and public holidays). They do not contain any provision relating to the internal or external characteristics of the products in question and do no create in the Member State where they are in force added production or marketing costs for products lawfully *658 manufactured and marketed in other Member States, since they do not make it necessary to harmonise the internal or external characteristics of imported products. Consequently, since the rules at issue can be characterised as selling arrangements, they cannot be regarded as a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty unless the two conditions referred to in the above-cited decision in Keck and Mithouard are not satisfied. 14. As far as the first condition is concerned, it is clear that national rules such as those at issue do not make a distinction between domestic and foreign traders as regards access to the national market on the same terms. With regard to the second condition, it must be pointed out, first, that the rules in question do not have as their subject-matter the movement of goods between the Member State, and, secondly, that there is nothing to indicate that those rules could, taken as a whole, entail, from a legal point of view, unequal treatment between domestic and imported products as regards their access to the market, or lead in practice, in the normal course of events, to such treatment. [FN26] FN26 See para. 28 of my Opinion of 23 March 1995 in Case C-63/94, Belgapom: [1995] I E.C.R. 2467. 15. On that point it should be noted that national provisions restricting generally the marketing of a product and consequently its importation cannot on that basis alone be regarded as restricting the possibility of access for imported goods to the market to a greater extent than for similar domestic products. As the Court of

Justice has held in Keck and Mithouard, the fact that national rules may restrict generally the volume of sales, and hence the volume of sales of products from other Member States, is not sufficient to characterise the legislation in question as a measure having equivalent effect to a quantitative restriction on imports. [FN27] FN27 See Para. [13] of Keck and Mithouard. The existence of other circumstances which could lead to the rule being described as a measure having equivalent effect has not been established. The cases here examined are extremely similar to Cases C 69 & 258/93, Punto Casa and Ppv in which the abovementioned judgment was delivered, both on the facts and as regards the legal issues. It will be recalled that formulation of the questions referred for a preliminary ruling is the same as that in Cases C-69/93 and C-258/93. 16. On 22 July 1994 the national court sent a letter to the court in which it maintained the questions it had referred and set out a series of factors relating to the particular features of the functioning of shopping centres in Italy. In the light of those facts, the national court takes the view that the specific effects in practice of the rules in question on imported products coming from other Member States merit in-depth examination. I consider that the factors referred to in the above letter and in the orders for reference do not confer a dimension on the facts that is any *659 different from that in Joined Cases C 69 & 258/93. Those two cases and the cases now before the court all concern large out-of-town shopping centres selling inter alia goods coming from other Member States for which the prohibition against Sunday trading entails a reduction in the volume of sales of the products they market. 17. According to the Pretura's decision, the prohibition against the opening of shopping centres on Sundays diverts demand towards domestic products inasmuch as: (a) shopping centres offer to the consumer public more imported goods in comparison with small retail shops which primarily sell domestic products; (b) the consumer has easier access on working days to small shops than he has to out-of-town shopping centres. The linking, however, of shopping centres to foreign Community products is not certain and free of doubt. Apart from the fact that the defendants, in their observations, cast doubt on that link, in any case there are no statistics or other evidence to show that shopping centres such as those operated by the applicants sell more foreign than domestic products as compared with small and medium-size retail shops, or that the products offered by shopping centres are bought by the consumer public mainly on Sundays and public holidays. At all events the restrictive effects which such a prohibition might have on imports are not at all obvious and would be only uncertain and indirect in character. [FN28] It is incontrovertible that the prohibition of sales on Sundays restricts the volume of sales of goods generally. The existence, however, of a causal link between the restriction of sales and a diminution of imports of foreign Community products appears wholly indirect and dependent on a combination of contingent circumstances and cannot be

presumed. Consequently, I consider that those circumstances cannot lead to the conclusion that the rules in question, viewed as a whole, impair intra-Community trade. In consequence Article 30 of the Treaty is not applicable in the circumstances. FN28 See The above-cited judgments Peralta (Para. [24]), Krantz (Para. [11]) and Esso Espanola (Para. [24]). 18. Contrary to the approach followed in the court's case law prior to Keck and Mithouard, including the cases concerning the prohibition of Sunday trading, following that decision, in a case where national rules are found to constitute selling arrangements, there is no need to go on to examine further whether the rules can be justified on the ground of a mandatory requirement in the public interest or on the basis of the exceptions provided for in Article 36 of the Treaty, since by definition the rules do not fall within the scope of application of Article 30. 19. Although it is unnecessary, I would point out that the court has recognised that that type of rule pursues a legitimate aim from the point of view of Community law. As the court held inter alia in Case C-169/91, B & Q, [FN29] national rules restricting the opening of shops on *660 Sundays reflect certain choices relating to particular national or regional socio-cultural characteristics. It is for the Member States to make those choices in compliance with the requirements of Community law, in particular the principle of proportionality. [FN30] In Case C-145/88, Torfaen Borough Council v. B & Q [FN31] the court emphasised that national rules governing the opening hours of retail premises "reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the Member State". [FN32] FN29 Cited above. FN30 Para. [11]. FN31 Cited above. FN32 Para. [14]. See also paras. [11]-[12] respectively of the judgments in Conforama and Others and Marchandise and Others, Cited Above. In the light of the foregoing I conclude that Article 30 does not apply to national rules prohibiting shops from opening on Sundays and public holidays.

Directives 83/189 and 88/182 20. Council Directive 83/189, as amended by Council Directive 88/182 and, more recently, by Directive 94/10, [FN33] lays down a procedure for the provision of information in the field of technical standards and regulations, requiring that

Member States immediately to communicate any draft technical regulation (Article 8 of the Directive). According to Article 1 of the directive, "technical specification" means "a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labelling". In the same article it is also stated that "technical regulation" means "technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure, or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities". From those definitions it can be concluded that national rules such as those contained in Italian Act 558 cannot be described as a technical specification or technical regulation within the meaning of the directive. The rules in question do not, moreover, appear to fall within any other of the definitions given in Article 1 of the directive. Regardless however, of that finding, it should be noted that the directive does not have retroactive effect and consequently does not apply to the rules in question, which were laid down in 1971, when there was no requirement of prior communication. FN33 [1994] O.J. L100/30.

*661 Article 52 of the Treaty and Directive 64/223 21. The Pretura asks in the last of the joined cases (Case C-332/94) whether the Italian rules in question are compatible with Article 52 of the Treaty and Article 2(2) of Directive 64/223 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade. According to settled case law, Article 52 is intended to ensure that all nationals of Member States who establish themselves in another Member State, even if that establishment is only secondary, for the purposes of pursuing activities there as a self-employed person receive the same treatment as nationals of that State and it prohibits, as a restriction on freedom of establishment, any discrimination on grounds of nationality. [FN34] Thus, provided that they maintain equal treatment, the Member States are at liberty, since there are no common rules for commercial activities in the distribution sector, "to adopt rules governing wholesale trade or retail trade". [FN35] It is clear that the provision in question does not introduce discrimination on the ground of nationality since it affects both Italian undertakings and undertaking of other Member States in the same circumstances. Consequently, the rule is not contrary to Article 52 of the Treaty. FN34 See Inter Alia Case 204/87, Bekaert: [1988] E.C.R. 2029, [1988] 2 C.M.L.R. 655, Para. [11]; Case 270/83, E.C. Commission v. France: [1986] E.C.R. 273, [1987] 1 C.M.L.R. 401, Para. [14]; Case 221/85, E.C. Commission v. Belgium: [1987] E.C.R. 719, [1988] 1 C.M.L.R. 620, Para. [10]; and Case 198/86, Conradi and Othes: [1987] E.C.R. 4469, [1989] 2 C.M.L.R. 155, Para. [9]. FN35 See Conradi and Others, Cited Above, Para. [10].

22. The court has, of course, held in recent decisions that national rules, even though applicable without discrimination on grounds of nationality, are contrary to Articles 48 and 52 if they are liable to hamper or to render less attractive, the exercise by Community nationals of the fundamental freedoms guaranteed by the Treaty. [FN36] There is nothing, however, in the pleadings to indicate that the provision in question has such restrictive effects, even potentially. Nor is it possible to establish the existence of a causal link between the prohibition against shops opening on Sundays and the possible deterrent effect that that could have on the establishment of large distribution undertakings from other Member States. The existence of such a causal link appears uncertain and vague. FN36 See Inter Alia Case C-19/92, Kraus: [1993] I E.C.R. 1663. 23. Lastly, as regards Council Directive 64/223 on 25 February 1964, this provides for the attainment, in the wholesale trade sector, of the freedom of establishment guaranteed in Article 52 of the Treaty. What was stated above in relation to that article applies here. In addition it should be made clear, as the Commission emphasises in its observations, that that directive contains transitional provisions intended to facilitate freedom of establishment in that specific sector during the period before the provisions of Article 52 of the Treaty *662 became fully and directly applicable. Consequently, that directive, albeit not expressly repealed, is now fully covered by the above article and for that reason should be regarded as redundant.

IV. Conclusion 24. In view of the foregoing, I suggest that the Court of Justice should give the following reply to the questions referred to it by the Pretura Circondariale di Roma (Sezione di Castelnuovo di Porto). Articles 30 and 52 of the Treaty do not apply to national rules such as those in question prohibiting without discriminating the opening of retail shops on Sundays and public holidays. Furthermore, that rule is not contrary to Directives 83/189, 88/182 and 64/223. JUDGMENT [1] By orders of 18 July, 28 October, 11 November, 2 and 16 December 1993, and 10 October 1994, received at the court between 13 October 1993 and 13 December 1994, the Pretura Cirondariale di Roma (Rome District Magistrates' Court), Sezione Distaccata di Castelnuovo di Porto (Castelnuovo di Porto Division), referred to the court for a preliminary ruling under Article 177 E.C. questions concerning the interpretation of Articles 30, 36 and 52 of that Treaty, Council Directive 64/223 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade, [FN37] and Council Directive 83/189 laying down a procedure for the provision of

information in the field of technical standards and regulations [FN38] as amended by Council Directive 88/182, [FN39] hereinafter "Directive 83/189". FN37 [1963-64] O.J. Spec. Ed. 123. FN38 [1983] O.J. L109/8. FN39 [1988] O.J. L81/75. [2] The questions were raised in connection with action taken by the public authorities against operators of large shopping centres for infringing the Italian legislation on the closing of retail outlets on Sundays and public holidays. [3] Italian Act 558 regulates the opening hours of businesses and retail outlets. Article 1(2)(a) of that Act provides that shops must close all day on Sundays and public holidays save in the exceptional cases laid down in that Act. Detailed provisions on opening hours are to be laid down by the Regions. Article 10 of the Act provides for administrative penalties for non-compliance. The mayors of the relevant communes are responsible for monitoring compliance and may impose penalties. [4] The applicants in the main proceedings (hereinafter "the *663 applicants") operate large shopping centres located in various communes. When these centres stayed open on certain Sundays and public holidays the mayors of the communes concerned imposed administrative penalties on the applicants. [5] The applicants then brought proceedings in the national court. They claimed that a significant proportion of the turnover achieved in the shopping centres related to goods from other Member States of the Community. In their view, the national provisions in question were accordingly incompatible with Community law, in particular Article 30 of the Treaty. [6] In those circumstances the national court stayed proceedings and referred the following questions to the court in Joined Cases C 418-421, 460-462 & 464, 9-11, 14-15 & 23-24/94: 1. Does a provision of national law which (save for certain products) requires retail shops to close on Sundays and public holidays, but does not prohibit working in such shops on those days (and imposes the penalty of forced closure on shops in breach of that requirement), thus significantly reducing their sales, including sales of goods produced in other Member States of the Community, with a consequent reduction in the volume of imports from such States, constitute: (a) a measure having an effect equivalent to a restriction on imports within the meaning of Article 30 of the Treaty of Rome and subsequent rules of Community law adopted in pursuance of the principles laid down therein; or (b) a means of arbitrary discrimination or a disguised restriction on trade between Member States; or (c) a measure which is disproportionate and inappropriate to the socio-ethical aim pursued by the provision of national law; given that:

-- large-scale distributors and organised distribution centres (the category to which the applicants belong) on average sell a greater quantity of products imported from other Member States than that sold by small and medium-sized traders; -- the turnover achieved by large-scale distributors and organised distribution centres on Sundays cannot be compensated for by substitute purchases by customers on other days of the week, such purchases being made within a commercial network which in general obtains its supplies from domestic producers? 2. If the answer to Question 1 is in the affirmative, does the national measure in question fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or other derogations provided for by Community law? [7] In Case C-332/94 the national court referred the following questions: Whereas: -- large-scale distributors and organised distribution centres, which are mostly located on the periphery of, or outside, large towns, offer for sale and sell on average a greater quantity of products imported from other Member States than is offered for sale and sold by small and medium-sized traders, who unlike the former are widely scattered throughout Italy, in both town and country; *664 -- sales by large-scale distributors and organised distribution centres on Sundays alone, in the brief periods in which they are allowed to sell on that day, are greater than sales made by those businesses during the working week; -- sales which large-scale distributors and organised distribution centres cannot make on public holidays are not compensated for by those which they make during the working week, and therefore unsatisfied customer demand is directed towards other trade outlets (made up of small and medium-sized businesses closer to consumers and easy to reach even on public holidays) which, however, in general obtain their supplies only from domestic producers; Question 1 Does a provision of national law which (save for certain products) requires retail shops to close on Sundays and public holidays, but does not prohibit working in such shops even on those days (and penalises breach of that requirement by forced closure and withdrawal of licences), constitute: (a) a measure having an effect equivalent to a restriction on imports within the meaning of Article 30 of the Treaty of Rome and secondary rules of Community law adopted in pursuance of the principles laid down therein; or (b) a means of arbitrary discrimination or a disguised restriction on trade between Member States; or (c) a measure which is disproportionate and inappropriate in relation to the socio-ethical aim pursued by the provision of national law; or (d) an infringement of Article 52 EEC concerning freedom of establishment and of subsequent Community legislation enacting in implementation of that principle; or (e) an infringement of Article 2(2) of Directive 64/223 concerning the attainment

of freedom of establishment and freedom to provide services in respect of activities in wholesale trade; or (f) an infringement of Directives 83/189 and 88/182 concerning the elimination of technical barriers to trade between Member States, in view of the fact that the prohibition on Sunday opening of shops is a general prohibition in appearance only, which is in fact subject to exemptions for a series of products which are, except in a very few unavoidable instances, exclusively of domestic origin? Question 2 If the answer to the first question, in each of its parts, is in the affirmative, does the national measure fall within the derogations from Article 30 provided for in Article 36 of the Treaty of Rome, or within other derogations provided for by Community law? [8] By orders of the President of the Court of 10 November 1993, 27 January 1994 and 23 February 1994, some of the cases were joined for the purposes of the written and oral procedure and of the judgment. By order of the President of the Fifth Chamber of the Court of 19 October 1995 all the cases were joined for the purposes of the oral procedure and of the judgment. *665 Article 30 of the Treaty [9] In its judgment in Joined Cases C 69 & 258/93, Punto Casa and Ppv [FN40] the court gave a ruling on questions from the same national court which were substantively identical to those submitted in the present cases, with the exception of Question 1(d) to (f) in Case C-332/94. FN40 [1994] I E.C.R. 2355. [10] In that judgment the court applied its decision in Keck and Mithouard (Joined Cases C 267-268/91 [FN41]). FN41 [1993] I E.C.R. 6097, [1995] 1 C.M.L.R. 101. [11] In the latter case, which concerned national legislation imposing a general prohibition on resale at a loss, the court found that such legislation may restrict the volume of sales and, consequently, the volume of sales of products from other Member States in so far as it deprives traders of a method of sales promotion. The court then had to decide whether such a possibility was sufficient to characterise the legislation in question as a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty. [FN42] FN42 Para. [13]. [12] The court considered that the application to products from other Member

States of national provisions restricting or prohibiting certain selling arrangements was not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of Dassonville (Case 8/74 [FN43]), so long as those provisions applied to all relevant traders operating within the national territory and so long as they affected in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. [FN44] FN43 [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436, Para. [5]. FN44 Para. [16]. [13] The court pointed out that, provided those conditions were fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State was not by nature such as to prevent their access to the market or to impede access any more than it impeded the access of domestic products. Such rules therefore fell outside the scope of Article 30 of the Treaty. [FN45] FN45 Para. [17]. [14] In its judgment in Punto Casa and Ppv [FN46] the court held, first, that in the case of legislation of the kind at issue, which was concerned with the circumstances of sale to consumers, the conditions set out in the Keck and Mithouard judgment were fulfilled. [FN47] The court further found that the legislation at issue was applicable, irrespective of the origin of the products in question, to all the traders concerned and did *666 not affect the marketing of products from other Member States any differently from the marketing of domestic products. [FN48] FN46 Cited above. FN47 Para. [13]. FN48 Para. [14]. [15] In those circumstances the court held that Article 30 of the Treaty was to be interpreted as not applying to national legislation on the closing times of shops which applied to all traders operating within the national territory and which affected in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. [16] Following delivery of the judgment in Punto Casa and Ppv, the court asked the national court whether it considered that the questions raised in Cases C 418-421, 460-462, 464/93 & 9-11, 14-15 & 23-24/94, which had been stayed until delivery of that judgment, had been answered in full. [17] In its reply, the national court asked that the cases pending before the court

should proceed to a ruling, stating essentially that because of the particular features of the Italian commercial market the legislation in question discriminated indirectly against imported goods. [18] The national court points out in particular that the Italian market is distinguished, first, by a large number of small businesses catering for a very limited number of customers and, second, by large shopping centres located on the periphery of, or outside, towns. In view of the limited amount of free time available to the consumer on working days, those large centres are not easily accessible to their customers except on Sundays and, because those centres cannot be reached sufficiently easily and frequently, customer demand is diverted towards small businesses closer to the consumer and therefore towards national products, since small businesses do not stock foreign products in the same variety and quantity. [19] In those circumstances, the national court considered that the effects of the legislation in question on the marketing of national products and on the marketing of products from other Member States were not in fact the same. [20] The national court gave the same reason and put similar questions in Case C-332/94. [21] According to the applicants, the national legislation does indeed have the effects described by the national court so that the conditions laid down in the judgment in Keck and Mithouard are not fulfilled. [22] The Comune di Terlizzi, the defendant in Case C-9/94, the Greek Government and the Commission take the view, on the other hand, that the judgment in Punto Casa and Ppv gives a full and proper answer to the question concerning Article 30 raised by the national court. [23] In the present cases, the observations made by the national court on the effects of the national rules at issue are identical in *667 substance to those it made in the cases giving rise to the judgment in Punto Casa and Ppv. [24] There is no evidence that the aim of the rules at issue is to regulate trade in goods between Member States or that, viewed as a whole, they could lead to unequal treatment between national products and imported products as regards access to the market. In this connection, it must be reiterated that national rules whose effect is to limit the marketing of a product generally, and consequently its importation, cannot on that ground alone be regarded as limiting access to the market for those imported products to a greater extent than for similar national products. As the court stated in paragraph [13] of Keck and Mithouard, the fact that national legislation may restrict the volume of sales generally, and hence the volume of sales of products from other Member States, is not sufficient to characterise such legislation as a measure having an effect equivalent to a quantitative restriction. [25] Moreover, the court has repeatedly recognised that national legislation such as that at issue pursues an aim which is justified under Community law, and that national rules restricting the opening of shops on Sundays reflect certain choices relating to particular national or regional socio-cultural characteristics. It is for the Member States to make those choices in compliance with the requirements of Community law (see Case C-169/91, B & Q [FN49]).

FN49 [1992] I E.C.R. 6635, [1993] 1 C.M.L.R. 426, Para. [11]. [26] The court went on to rule in that case that Article 30 of the Treaty is to be interpreted as meaning that the prohibition it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays. [27] No new factor has emerged in these proceedings which might justify an assessment different from that made by the court in the judgments in Punto Casa and Ppv and B & Q. [28] The reply to be given to the national court must therefore be that, on a proper construction, Article 30 of the Treaty does not apply to national rules on the closing times of shops applicable to all traders exercising an activity on national territory and affecting in the same way in law and in fact the marketing of national products and products from other Member States. Article 52 of the Treaty and Directive 64/223 [29] In Case C-332/94 the national Court also asks whether Article 52 of the Treaty and Directive 64/223, concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade, preclude national rules on the closing times of shops such as those at issue in the main proceedings. [30] As far as Directive 64/223 is concerned, the aim of that directive is the attainment, in the field of wholesale trade activities, of freedom *668 of establishment, as guaranteed, with direct effect after the expiry of the transition period, by Article 52 of the Treaty (see Case 198/86, Conradi and Others [FN50]). FN50 [1987] E.C.R. 4469, [1989] 2 C.M.L.R. 155, Para. [8]. [31] There is therefore no need to examine Directive 64/223 separately from Article 52 in this instance. [32] As far as Article 52 is concerned, suffice it to state that, as has been found above, the legislation in question is applicable to all traders exercising their activity on national territory; that its purpose is not to regulate the conditions concerning the establishment of the undertakings concerned; and that any restrictive effects which it might have on freedom of establishment are too uncertain and indirect for the obligation laid down to be regarded as being capable of hindering that freedom. [33] Accordingly, neither Article 52 of the Treaty nor Directive 64/223 preclude national rules on the closing times of shops such as those at issue in the main proceedings. Directive 83/189 [34] In Case C-332/94 the national court seeks to ascertain, lastly, whether

Directive 83/189, laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 88/182, applies to national rules on the closing times of shops such as those at issue in the main proceedings. [35] Whether or not the directive was applicable at the material time, it does not apply ratione materiae to national rules on the closing times of shops such as those at issue here. [36] Under Article 8 of the directive, the obligation to give prior notification applies to any draft technical regulation. [37] Article 1(5) defines "technical regulation" as "technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities". Under Article 1(1), "technical specification" means "a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marketing or labelling ...". [38] The obligation to notify laid down by the directive does not therefore apply to national rules which do not lay down the characteristics required of a product but are confined to regulating the closing times of shops. [39] Accordingly, Directive 83/189 is not applicable to national rules *669 on the closing times of shops such as those at issue in the main proceedings. Costs [40] The costs incurred by the Greek Government and the E.C. Commission, which have submitted observations to the court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT (Fifth Chamber), in answer to the questions referred to it by the Pretura Circondariale di Roma, Sezione Distaccata di Castelnuovo di Porto, by orders of 18 July, 28 October, 11 November, 2 and 16 December 1993 and 10 October 1994 HEREBY RULES: 1. On a proper construction, Article 30 E.C. does not apply to national rules on the closing times of shops applicable to all traders exercising an activity on national territory and affecting in the same way in law and in fact the marketing of national products and products from other Member States. 2. Article 52 E.C. and Directive 64/223 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in the wholesale trade do not preclude national rules on the closing times of shops such as those at issue in the main proceedings.

3. Council Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Council Directive 88/182, is not applicable to national rules on the closing times of shops such as those at issue in the main proceedings.

(c) Sweet & Maxwell Limited [1996] 3 C.M.L.R. 648 END OF DOCUMENT