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YOUR NOTES ON '61980CC0155'
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CASE-LAW

61980C0155

OPINION OF MR ADVOCATE GENERAL CAPOTORTI

DELIVERED ON 27 MAY 1981 ( 1 )

Mr President,

Members of the Court,

1. 

These proceedings are concerned with the interpretation of Articles 7, 30 and 34 of the EEC Treaty with respect to measures imposed by a Member State which prohibit the making and transport at night of ordinary and fine baker's wares.

I shall briefly summarize the facts. Mr Sergius Oebel, a national of the Federal Republic of Germany, was accused of infringing the German Law of 23 July 1969 on working hours in bakeries by authorizing 15 employees to make bakery products at about two o'clock in the morning on 21 July 1978 on the premises of the undertaking Bockenheimer Brot GmbH in Wiesbaden. Proceedings were instituted before the Amtsgericht Wiesbaden and by an order of 22 April 1980 that court decided to refer the following questions to the Court of Justice for a preliminary ruling:

“Must Article 7 of the EEC Treaty be interpreted as meaning that there is a breach of the prohibition of discrimination if by means of a statutory provision a Member State of the Community creates a situation which considerably impairs the competitiveness of its own nationals in relation to comparable nationals of other Member States?

Must Articles 30 and 34 of the EEC Treaty be interpreted as meaning that the effects of Article 5 of the Gesetz über die Arbeitszeit in Bäckereien [Law on working hours in bakeries] in regard to the export and import of fresh baker's wares are to be regarded as measures equivalent to quantitative restrictions on imports or quantitative restrictions on exports?”

2. 

For a clear understanding of the significance of the first question it would be useful to note that in the order for reference the trial judge stated inter alia that the Federal Republic of Germany is the only country within the Community where there is a prohibition on night-work in the bakery industry and that “a distortion of competition” has thereby been created to the detriment of German tradesmen, in particular those who operate in the frontier areas. They are put at a disadvantage by the fact that tradesmen in the adjacent States where there are no analogous limitations on working hours are in a position to supply bakery products in large areas of the Federal Republic considerably earlier than the German tradesmen. Consequently the Amtsgericht Wiesbaden thinks that Article 5 of the Law on working hours in bakeries may conflict with Article 7 of the EEC Treaty.

I should like to say at the outset that in my opinion no such conflict exists. By prohibiting “any discrimination on grounds of nationality” Article 7 seeks to prevent, in each of the Member States, any discriminatory treatment of nationals of other Member States by reason of the fact that they are foreigners; it is wellknown that Article 7, precisely because it has that function, is given effect above all in the Community rules in respect of the free movement of persons and services. That has nothing to do with possible imbalances in competition prejudicial to the nationals of a Member State, caused by the legislation in force in that State. In fact, legislation like that involved in these proceedings is not applied on the basis of the nationality of the tradesmen but solely because they operate on German territory; a French or Italian baker in Germany would be similarly subject to the law in question. The Court has already had occasion to declare, in similar cases, that no discrimination on the basis of nationality has occurred and therefore Article 7 of the EEC Treaty cannot be regarded as having been infringed (judgment of 30 November 1978 in Case 31/78 Bussone [1978] ECR 2429, paragraph 37 et seq. of the decision). Other conclusions could, and indeed should, be reached only if the internal legal provisions were only apparently neutral and in reality, whilst complying in form with the prohibition of discrimination, they pursued protectionist aims for the benefit of the nationals of the State; but such is manifestly not the case as far as legislation like the German provisions on nightwork in bakeries is concerned.

It should be recognized in general that the matter of working hours falls within the purview of the individual Member States and therefore regulations which differ from State to State are possible. National rules in this field may of course directly or indirectly influence the competitiveness of the undertakings to which the rules apply and may in certain cases lead to situations of imbalance, above all in relations between neighbouring undertakings located on opposite sides of a frontier; however, such situations do not intrinsically conflict with principles of Community law. Where disparities between national legal provisions for which the internal legislature is responsible lead to distortions of competition in the common market, the most progressive remedy is the adoption by the Community authorities of directives intended to approximate the legislation of the States concerned in accordance with Article 101 of the EEC Treaty.

3. 

The second question raised by the trial judge relates, as we have seen, to the interpretation of Articles 30 and 34 of the EEC Treaty and in particular to the prohibition of measures having an effect equivalent to quantitative restrictions on imports and exports. It should be emphasized that the scope of those prohibitions has been gradually defined in a particularly large number of decisions of the Court and that nearly all those decisions have been characterized by a strict approach. In fact, there was no doubt as to the incompatibility with the above-mentioned articles of measures which directly restricted the movement of goods between Member States, such as public health inspections of imports (see for example the judgment of 15 December 1976 in Case 35/76 Simmenthal [1976] ECR 1871) or the requirement that exporters must submit a standards certificate issued by the relevant State-appointed body (judgment of 3 February 1977 in Case 53/76 Bouhelier [1977] ECR 197). But the Court adopted, and has adhered to, a much wider definition of measures having an effect equivalent to quantitative restrictions by including “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” (see the well-known judgment of 11 July 1974 in Case 8/74 Dassonviile [1974] ECR 837, which was followed in the judgment of 13 March 1979 in Case 119/78 Grandes Distilleries Pereux [1979] ECR 975, paragraph 22 of the decision). More recently the Court included within the scope of the prohibition “any national rule” which displays the above characteristics (judgment of 26 February 1980 in Case 94/79 Pieter Vriend [1980] ECR 327, paragraph 8 of the decision).

As a result of this approach measures which actually or potentially restrict intra-Community trade have come to be regarded as prohibited by Articles 30 and 34 even where they are not in any way discriminatory — in other words, even if they restrict both trade carried on within a single Member State and intra-Community trade in the same way. Thus the Court has also considered as a measure having an effect equivalent to a quantitative restriction the fixing by national authorities of minimum or maximum sales prices applied without distinction to both national and imported products if they in fact prove disadvantageous to the imported products because the prescribed price level prevents foreign producers from passing their costs on to the consumer (judgments of 24 January 1978 in Case 82/77 Van Tiggele [1978] ECR 25; and of 6 November 1979 in Joined Cases 16 and 20/79 Danis [1979] ECR 3327). The same view has been taken of national measures whose effect is to fix production quotas, since those measures affect, at least potentially, the freedom of intra-Community trade (judgment of 30 October 1974 in Case 190/73 van Haaster [1974] ECR 1123; also with regard to the slaughter of poultry, judgment of 18 May 1977 in Case 111/76 van den Hazel [1977] ECR 901).

However, the Court has moderated the extent of the prohibitions contained in Articles 30 and 34 not only by giving effect to the provisions in Article 36 which derogate therefrom but also by recognizing the lawfulness of national restrictive measures which seek to serve “a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the Community” (paragraph 14 of the decision, judgment of 20 February 1979 in Case 120/78 Rewe [1979] ECR 649); in particular, measures intended to ensure the efficacy of fiscal controls or to promote fair trading and consumer protection. In my opinion, this trend arises from the consideration that, whilst the restrictive effect of specific State measures may be objectively undeniable — above all if the wide definition adopted in the Dassonviile judgment of an actual or potential, direct or indirect restrictive effect is adhered to — there are also, apart from the derogations provided for in Article 36 of the Treaty, particular values which are recognized by Community law or which correspond to principles common to the laws of the Member States, and which are accorded priority over the rules contained in Articles 30 and 34 and therefore have the effect of neutralizing the prohibitions imposed by those articles. Naturally the Court has always adhered to the view that no measure restricting production or trade may go beyond the extent which seems necessary having regard to the nature of the general interest from which its lawfulness derives.

On the other hand, the judgment delivered on 8 November 1979 by the Second Chamber of this Court in Case 15/79 Groenveld [1979] ECR 3409, marks the adoption of a position based on a different criterion. In that case a ruling had to be given on a national measure prohibiting manufacturers of processed meat products from processing horsemeat or holding stocks thereof without distinction between products intended for export and those intended for sale within the Member State. The Court held that Article 34 “concerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of the other Member States” (paragraph 7 of the decision). Consequently, it was decided that “in the present state of Community law a national measure prohibiting all manufacturers of meat products from having in stock or processing horsemeat is not incompatible with Article 34 of the Treaty if it does not discriminate between products intended for export and those marketed within the Member State in question”.

The principal new feature introduced by that ruling is the fact that it adopted, as a condition for the applicability of Article 34, the existence of a specific effect on the patterns of exports — and therefore of discrimination between domestic trade and export trade — whereas previously the only condition laid down by the Court was the restrictive effect on trade, irrespective of whether the measures adopted were of a discriminatory nature. It cannot be denied, I think, that there is change in the trend of interpretation by comparison with the van Haaster and van den Hazel judgments referred to above. Nor do I believe that it would be valid to say that in those two judgments the definition of the prohibition of measures having an effect equivalent to quantitative restrictions had been inferred from two regulations setting up common organizations of markets, whereas in the Groenveld case the horsemeat trade, to which the disputed national measure referred, did not form part of an organization of that kind. In fact, the concept embodied in Articles 30 and 34 of the Treaty does not differ — whether approached from a literal or functional point of view — from that contained in the regulations setting up common organizations of markets.

It should therefore be noted that after the Groenveld judgment the case-law of the Court regarding measures having an effect equivalent to quantitative restrictions is no longer totally uniform. None the less, the trend to which I have alluded above is absolutely predominant and has also been confirmed in decisions subsequent to the Groenveld case — I refer to the Vriend judgment of 26 February 1980 mentioned above, to which may also be added the judgment of 26 June 1980 in Case 788/79 Gilli [1980] ECR 2071. It therefore seems to me that there is justification for considering that the solution adopted in the Groenveld judgment cannot be divorced from the specific features of that case and is thus confined to the interpretation of Article 34 in relation to restrictive measures applied at the production stage, the effects of which on exports are secondary. Let me also observe that the abandonment of a single concept of what constitutes measures having an effect equivalent to quantitative restrictions is likely to give rise to confusion and that if the Court were to start restricting that concept when interpreting Article 30 control over State measures prejudicial to freedom of trade in the common market would be seriously weakened.

4. 

I now return to my consideration of the question raised by the Amtsgericht Wiesbaden in these proceedings. There are two aspects to the question, corresponding to the interpretation of Article 30 and of Article 34 of the EEC Treaty respectively. The measures to be examined in the light of each of those provisions are, on the one hand, the measure limiting the hours of nightwork in bakeries and, on the other, the measure prohibiting the transport, sale and delivery of fresh bakery and pastry products between 10 o'clock at night and 5.45 in the morning. It should indeed be remembered that Article 5 of the German Law on working hours in bakeries — the implementation of which in the main action has given rise to this application for a preliminary ruling — not only prohibits production in the above-mentioned establishments during the night but also prohibits the sale, transport or delivery to consumers or retailers of bakery products, regardless of origin, during the above-mentioned period.

There is no difficulty in recognizing that the limitation of working hours does not per se come within the scope of Article 30; it may of course have an effect on imports — fostering them rather than restricting them — in so far as concerns countries which export the same products and adopt less stringent internal regulations. However, an appraisal of such a limitation in the light of Article 34 leads to quite different results; limiting the working hours in fact means limiting production and indirectly the flow of exports of the goods produced (at least bakery products intended to be consumed while fresh, that is to say within a few hours of their leaving the oven).

In view of the foregoing, the simplest solution to the problem concerning the interpretation of Article 34 might seem to be to confirm the precedent set by the Groenveld judgment; indeed, in this case too the discussion is concerned with measures limiting production which have restrictive effects both on domestic trade and on the export trade and which affect the latter to a limited degree (the fact should be borne in mind that the nature of the product is such that it can only be sold abroad from the areas near the frontier). I do not, however, advise the Court to adopt that solution because, for one thing, it would lead to a first extension of the criteria on which the Groenveld judgment is based; that is to say, it would also be necessary to regard the restrictive measure concerning the permitted times for the transport and delivery of goods produced in German bakeries as falling outside the scope of Article 34. A further and more serious extension of those criteria would take place if in addition it were decided that the limitation of permitted times for the transport and delivery of goods produced by foreign bakeries and imported into Germany also falls outside the prohibition of measures having an effect equivalent to quantitative restrictions; this brings us into the field of Article 30 and the precedent created by the Groenveld judgment cannot be properly invoked.

I therefore feel that a different path should be followed, one which the Court has been suggesting for a long time. The starting point must be recognition that the limitation of production caused by the prohibition of nightwork in bakeries may be seen objectively to have an effect equivalent to a quantitative restriction on exports. But at the same time it should be recognized that the limitation is justified both on the basis of Article 36, because it protects people's health, and because it is conducive to the objective, which is in the general interest, of improving working conditions. In view of the importance of these two aims within the Community system I think it is possible also to regard as justified the limitations of permitted times laid down in the same enactment for the transport and delivery of the products in question, in so far as such limitations are necessary to ensure observance of the prohibition of nightwork.

These statements must be clarified. It is quite clear that shorter working hours give rise to a lower level of production; as regards the relationship between measures restricting production and the restrictive effect on exports, that is apparent from the interpretation repeatedly given by the Court of the concept of measures having an effect equivalent to quantitative restrictions on trade (without the addition, of course, of the discriminatory element, which is not required by Article 34). It is hardly necessary to add that, in this case, the creation of obstacles to exports has been fully illustrated by the order seeking a preliminary ruling.

How can the prohibition of nightwork in bakeries be justified?

In the case of the Federal Republic of Germany it may be ascertained from the records that the prohibition was imposed essentially to protect the health of workers employed in small and medium-scale bakery and confectionery undertakings which do not have enough employees for a system using three separate shifts and would therefore be obliged to use for the nightwork some of the staff who had already worked during the day or, at least, would be unable to ensure for their employees proper alternation between the periods of nightwork and daywork. The extension of the same prohibitions to the large producers, despite the fact that they might be able to organize their activities on the basis of separate shifts, with the appropriate rotation of personnel, seems to be based (according to the observations of the Bundesverfassungsgericht [Federal Constitutional Court]) on the need to avoid creating any discrimination, which would in any case be harmful from the economic point of view, between large and small or medium-scale undertakings.

Furthermore, in general terms, the connection between the prohibition of night-work in bakeries and the protection of the health and welfare of workers is convincingly demonstrated by the existence of a multilateral convention drafted by the International Labour Organization in 1925 which relates to nightwork in bakeries and prohibits the manufacture during the night of bread, pastries and similar flour-based products (Article 1 (1) and (2)). The Convention entered into force on 26 May 1928 and the parties to it include two Member States, Ireland and Luxembourg. Furthermore, two other Member States — France and Italy — have incorporated in their legislation the prohibition on nightwork in bakeries, although it is mitigated by specific exceptions. It seems to me therefore that underlying that prohibition is an objective and widely-felt need to protect workers, regardless of the size of the undertaking.

Having regard to all the foregoing, I am of the opinion that Article 36 must be applied to the question under discussion, in so far as it declares that “prohibitions or restrictions on imports, exports or goods in transit justified on grounds of ... the protection of health and life of humans” shall not be precluded. This does not, however, mean that it is inappropriate also to have recourse to the test adopted in decisions of Court, to the effect that obstacles to trade may be justified if they serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods (judgment of 20 February 1979, Rewe, cited above). In this case, the purpose in the general interest is the concern “to promote improved working conditions and an improved standard of living for workers”, which is formally recognized in the first paragraph of Article 117 of the EEC Treaty.

5. 

There remains to be dealt with the most delicate problem raised by these proceedings, namely the limitations on the times at which bakery and pastry products may be sold, delivered and transported. The link between such limitations and the prohibition of nightwork is clear — since work in bakeries is allowed to start at 4 a.m., the prohibition of the sale, delivery and transport from 10 p.m. to 5.45 a.m. is intended to discourage any breach of the prohibition of production between 10 p.m. and 4 a.m., as any bread produced during that period could not be distributed immediately. But the fact which should not be overlooked is that the limitations on working hours referred to here apply both to products manufactured in Germany and to those imported from other countries.

In the case of German produce, the link between the provisions relating to nightwork and the provisions under consideration here may be logically regarded as a relationship between principal rules and subsidiary rules. In this way it is possible to take the view that the justification for the prohibition of nightwork — in derogation from the provisions of Article 34 of the EEC Treaty — also extends to the prohibition of tne sale, delivery and transport of those products whose manufacture is subject to local law (German law in this case). But reasoning of this kind incontestably runs into serious difficulties in the case of products which, having been manufactured in countries where there is no analogous prohibition of nightwork, are imported (into Germany in this case).

A strict line of reasoning would lead to the conclusion that Article 30 had been infringed because of the obstacles which those restrictions on working hours create for the sale of products lawfully manufactured in other Member States. Nor could any justification for such obstacles be derived from the consideration that internal production would be placed at a competitive disadvantage compared with the production of other Member States if the restrictions in question were applied only to domestic production. It is in fact acknowledged that an intention to defend national production from foreign competition can certainly not, under Community law, render restrictions on the movement of imported goods lawful.

The nub of the question, in the last analysis, is whether or not it is possible to decide that the extension to imported goods of the prohibition on the transport, sale and delivery of fresh bread and confectionery during certain hours of the night is a conditio sine qua non for the application of the same prohibition to domestic goods so as to guarantee observance of the rules relating to nightwork. Counsel for the German Government stated that, by virtue of the principle of equality of treatment as understood in the Federal Republic of Germany, exclusion of foreign products from the prohibition in question would prevent maintenance of the prohibition for the equivalent German products. This is of course a problem of internal law which, as such, is of no importance at the level of Community law; however, the legal obstacle referred to by the German Government might to some extent demonstrate that the possibility of effectively maintaining a prohibition of night-work in bakeries necessarily presupposes general limitations on the times at which fresh bread and similar products may be transported, sold and delivered, without distinction as to their origin.

In any case, the existence of such a connection in my opinion provides, in principle, the only means of accepting, in derogation from Article 30 of the Treaty, the inclusion of imported bakery products within the measure restricting the times at which such products may be transported, sold and delivered. The Court may therefore confine itself to a statement of principle to that effect, having regard to the nature and the limits of these proceedings for a preliminary ruling.

6. 

Before concluding, I should like to say a few further words about the advisability of not departing from the concept hitherto adhered to by the Court with regard to measures having an effect equivalent to quantitative restrictions, a concept based on a broad and unitary interpretation of the prohibitions contained in Articles 30 and 34, which is however tempered by the existence of important exceptions based on overriding general interests. This concept has the advantage of being clear and functional; the wide scope attributed to the prohibition makes it possible to block all State measures whose effect is to restrict the free movement of goods; furthermore, the extent of the action which Member States may take in order to regulate matters for which they retain responsibility is safeguarded. There is no doubt that the existence of differing national rules which affect production and commerce continues to create obstacles to free trade but the fact that such obstacles are allowed only by way of derogation implicitly emphasizes the need to continue the process of harmonizing the legislation of the different States. If, on the other hand, it is proposed with regard to national measures liable to hinder intra-Community trade that those which fall within the prohibitions laid down in Articles 30 and 34 be distinguished from those to which the said articles do not in fact apply, there is a risk that the door might be opened to further measures of that kind without the availability of any proven means of drawing a precise boundary between the two categories. There would then be grounds for fearing that the boundary might be gradually shifted, weakening the provisions of Articles 30 and 34, in order to take into consideration particular public interests specific to this or that Member State, whereas the constantly upheld principle of the free movement of goods has hitherto been regarded above all as a powerful means of safeguarding the interests of undertakings and consumers in the Community.

7. 

In view of all the above considerations, I am of the opinion that the questions raised by the Amtsgericht Wiesbaden, by its order dated 22 April 1980, should be answered by the Court as follows:

1.

Article 7 of the EEC Treaty does not prevent a Member State from regulating the hours of work in specific sectors of production more restrictively than the other Member States, provided that the persons to whom such measures apply are not discriminated against on the basis of nationality.

2.

The prohibition imposed by a Member State on nightwork in bakeries, although constituting a measure liable to hinder intra-Community trade, is to be regarded as lawful by virtue of Article 36 of the EEC Treaty, having regard also to the general objective of improving working conditions.

3.

Limitations on the times at which domestic and imported bread and confectionery may be transported, sold and delivered, which are in force in a Member State in connection with the prohibition of nightwork in bakeries, are admissible only to the extent to which they are strictly necessary to ensure observance of that prohibition.


( 1 ) Translated from the Italian.

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