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YOUR NOTES ON '61988CC0306'
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CASE-LAW

61988C0306

OPINION OF ADVOCATE GENERAL

VAN GERVEN

delivered on 8 July 1992 ( *1 )

Mr President,

Members of the Court,

1. 

These cases once again concern the compatibility with the Treaty provisions on the free movement of goods of the prohibition in England and Wales on the operation of a shop on Sundays (hereinafter the Sunday trading ban or the United Kingdom Sunday trading provisions). Three sets of proceedings are pending before English courts against persons charged with infringements of the Sunday trading ban.

The Court addressed these issues for the first time in the Torfaen ( 1 ) judgment. The judgments of the Court in Conforama ( 2 ) and Marchandise, ( 3 ) concerning French and Belgian labour legislation prohibiting the employment of workers on Sundays or on Sundays after 12 noon respectively, are closely related.

Legal and factual background

2.

Section 47 of the Shops Act 1950 lays down the following prohibition:

‘Every shop shall, save as otherwise provided by this part of this Act, be closed for the serving of customers on Sunday: provided that a shop may be open for the serving of customers on Sunday for the purposes of any transaction mentioned in the fifth schedule to this Act.’

The fifth schedule contains a list of items which may be sold in shops on Sundays, such as intoxicating liquors, tobacco, newspapers, certain foodstuffs and other products of everyday consumption.

Offences against this prohibition are punishable under Section 59 of the Shops Act, which provides that:

‘In the case of any contravention of any of the foregoing provisions of this Part of this Act, the occupier of the shop shall be liable to a fine not exceeding level 4 on the standard scale.’

It appears that the maximum amount of the fine for a contravention is £1000. The Sunday trading ban does not apply in Scotland.

3.

The Sunday trading ban as imposed by the Shops Act is a matter of controversy in Great Britain. As the House of Lords observes in its order for reference in Case C-169/91, it is an issue on which feelings run very high. British public opinion is very divided on it; one-third of the population appears to be in favour of retention of the law, and two-thirds are in favour of abolition or amendment, though without any agreement as to the form which such amendment should take. Since 1936 the United Kingdom Sunday trading provisions have withstood many attempts by Private Members Bills in Parliament, and in one case even by the Government, to secure their abolition or amendment. It should be added that for some time the law has to a considerable extent been disregarded, and that contraventions are not systematically prosecuted.

The judgment in Torfaen seems to have given rise to divergent interpretations by national courts. Both in Great Britain (with regard to the Sunday trading ban) and in France (with regard to the legislation at issue in the Conforama judgment) this has led to acquittal in some cases and conviction in others. Even after the judgments in Marchandise and Conforama, great uncertainty continues to prevail at least in Great Britain with regard to the compatibility of the Shops Act with Community law. This has recently led the High Court of Justice to stay proceedings brought by local authorities for contravention of the Shops Act, since it is of the opinion that in order to resolve those cases the situation under Community law must first be clarified. For the same reasons the United Kingdom has pressed the Court to give a ruling in Case C-169/91 as a matter of priority.

4.

The earliest of the three cases, C-306/88, concerns proceedings brought by Rochdale Borough Council against Stewart John Anders. Mr Anders is charged with opening his shop at Dale Mill on Sundays for transactions other than those mentioned in the fifth schedule to the Shops Act. Rochdale Borough Council has applied to the High Court of Justice, Queen's Bench Division, for an injunction restraining Mr Anders himself and his servants or agents from opening the shop on Sundays for the serving of customers, save for the transactions listed in the fifth schedule to the Shops Act. Mr Anders admits the contravention of the Sunday trading ban, but contends that the ban conflicts with Community law since it constitutes a measure having equivalent effect prohibited under Article 30 of the Treaty and is not justified under any of the exemptions contained in Article 36 or on any other basis.

The High Court referred to the Court four questions for a preliminary ruling. After being made aware of the judgments in Torfaen, Conforama and Marchandise it decided to maintain only the fourth question. ( 4 ) It is worded as follows:

‘If the prohibition referred to in Question 1 [the Sunday trading ban] contravenes Article 30 and is not justified under Article 36, is it totally unenforceable against a trader in the Member State or only unenforceable to the extent that it prohibits transactions involving goods manufactured in or imported from other Member States?’

5.

Case C-304/90 involves 20 informations laid by Reading Borough Council against five defendants in the national proceedings (Payless DIY Limited, Wickes Building Supplies Limited, Great Mills (South) Limited, Homebase Limited, on the one hand, and B & Q Pic on the other); ( 5 ) all are alleged to have opened their shop premises on Sundays for transactions other than those listed in the fifth schedule to the Shops Act. Whilst the parties are agreed that the Sunday trading ban constitutes a measure having equivalent effect, opinions differ as to whether it is justified. Reading and Sonning Magistrates' Court has asked the Court of Justice to give a preliminary ruling on the following questions, which to a large extent concern the scope of the Torfaen judgment:

‘1.

Where the legislation of a Member State prohibits retail premises from opening on Sundays for the personal serving of customers with the objective of ensuring so far as possible that shopworkers do not have to work on Sundays, with a view to maintaining what many regard as the traditional English Sunday, is such an objective one that is justified with regard to Community law within the meaning of paragraphs 12 to 14 of the judgment in Case 145/88 Torfaen Borough Council v B&Q Plc [1989] ECR 3851 ?

2.

When applying the test laid down by the Court of Justice in paragraph 15 of the judgment in Toifaen (the proportionality test) to such legislation:

(a)

Is the national court required to apply the criteria set out in Article 3 of Directive 70/50?

(b)

If so, does the national measure have to satisfy each of the criteria identified in the indents in the second paragraph of Article 3?

(c)

Is it the function of the national court to examine the facts (as proved by evidence) and come to its own conclusion regarding the applicability of those criteria, or is the function of the national court limited to deciding whether or not a national legislature acting reasonably could have adopted the legislative measure in question having regard to those criteria?

(d)

When assessing the restrictive effects of the national legislation on the free movement of goods, and also when comparing the restrictive effect on trade (if any) of the various different means that might be used to achieve the objective of the legislation, must the national court look only at the extent to which the effects on imported goods exceed the effects on domestic goods or can it look at the totality of the restrictive effects on intra-Community imports?

(e)

Is the relevant restrictive effect on trade to be examined in relation to: the overall effect on intra-Community trade in goods and/or services; or the effect on the sectors in which the undertaking in question operates; or the effect on that undertaking?

(f)

How is a national court to compare the restrictive effects on the free movement of goods arising from the national legislation with the objective of that legislation?

3.

Has Article 36 of the EEC Treaty any and if so what application to a national measure such as that in question?

4.

Is the answer to any of the above questions affected by the existence of exceptions to the legislative prohibition on Sunday trading’

6.

In the most recent case, Case C-169/91, the House of Lords asks a number of questions intended to clarify the relationship between the judgments in Conforama and Marchandise and the Torfaen judgment. The defendant in the main proceedings is once again (as in the Torfaen case and now in Case C-304/90) B & Q Plc, one of the largest operators of do-it-yourself shops and garden centres in the United Kingdom. The majority of the garden and do-it-yourself items sold in its shops are not mentioned in the fifth schedule to the Shops Act. Following the Court's judgment in Torfaen, the Council of the City of Stoke-on-Trent and Norwich City Council brought proceedings against B & Q for a final injunction to enforce compliance with the Sunday trading ban. On 18 July 1990 the High Court held that the local authorities were entitled to that injunction, but did not order it since B & Q gave appropriate undertakings. B & Q nevertheless appealed to the House of Lords on the basis that a point of law of general public importance was involved, namely the function of the national courts in assessing the Sunday trading ban in relation to the principle of proportionality.

Before the House of Lords it became apparent that there are two main points at issue between the parties: the interpretation and effect of the Torfaen judgment — in particular the nature of the task reserved to the national court in determining ‘the effects intrinsic to trading rules’ — and the application of the Conforama and Marchandise judgments to the United Kingdom legislative situation.

The House of Lords requested the Court to give a preliminary ruling on the following three questions:

‘1.

.Is the effect of the Court of Justice's rulings in Case C-312/89 Conforama and C-332/89 Marchandise to determine that the prohibition contained in Article 30 of the EEC Treaty does not apply to national rules, such as those in issue in Case 145/88, Torfaen Borough Council v B & Q plc, which prohibit retailers from opening their premises on Sunday for the serving of customers with certain goods?

2.

If not, is it nevertheless immediately apparent, whether or not evidence is adduced, that the restrictive effects on intra-Community trade which may result from national rales such as those in Question 1 above do not exceed “the effects intrinsic to rules of that kind”, as that phrase is used in the ruling of the Court of Justice in Case 145/88?

3.

If not, on what criteria and by reference to what, if any, factual or other evidence must the national court determine the question whether or not the restrictive effects on intra-Community trade which may result from national rules such as those in Question 1 above exceed “the effects intrinsic to rules of that kind” within the meaning of that phrase as used in the ruling of the Court of Justice in Case 145/88?’

7.

In my remarks I shall rearrange the questions referred to the Court in the following manner. First of all I shall deal with the first question submitted by the House of Lords on the significance of the Conforama and Marchandise judgments for the United Kingdom Sunday trading provisions. In doing so I shall begin by examining the points of difference between Torfaen and Conforama and Marchandise and then place these three judgments in the context of the Court's recent case-law on the applicability in principle of Article 30 (sections 8 to 17). Before embarking on the questions relating to the assessment of justification and proportionality, I shall first examine who is to carry out that assessment, the Court of Justice or the national court (sections 18 to 20). I shall then deal with the first question from the Magistrates' Court on the justification under Community law of the Sunday trading ban (sections 21 to 25). The question of proportionality then arises, in relation to which I shall deal with the second and third questions raised by the House of Lords, and the numerous sub-questions contained in the second question submitted by the Magistrates' Court (sections 26 to 32). Finally, I shall deal, in so far as may be necessary, with the Magistrates' Court's remaining questions, together with the sole question still before the Court in Case C-306/88 (sections 33 and 34).

Comparison of the Torfaen judgment and the Conforama and Marchandise judgments

8.

Both Payless DIY (Case C-304/90) and B & Q (Case C-169/91) argue that a distinction must be drawn between the French and Belgian labour provisions at issue in Conforama and Marchandise respectively and the United Kingdom Sunday trading provisions at issue in Torfaen (and in these cases). The former provisions are said to be of a very general nature, aimed at the protection of employees, so that the general rule is that workers may not be employed on Sundays. In England and Wales, on the other hand, the population is free to choose whether or not to work on Sundays, with the exception of the staff of retailers. The French and Belgian laws prevent workers from being employed in shops on Sundays, and thus have no effect on small owner-run shops, which can in both France and Belgium remain open all day on Sundays. Though the French and Belgian provisions contain exceptions, these do not give rise to such inconsistent results as the exceptions to the United Kingdom Sunday trading ban. Finally, the French and Belgian laws apply across the whole territory of those States, albeit with a limited possibility in France for local authorities to permit regional derogations. However, section 47 of the Shops Act does not apply in Scotland.

9.

As I stated in my Opinion in Conforama/Marchandise, I do not consider the abovementioned points of difference between the national provisions in question to be decisive in regard to the application of Article 30 of the Treaty. What is important is the effect of the provisions in both cases on intra-Community trade, and that is very similar. ( 6 ) In both cases specific legislation, relating either to labour law or to trade regulation, results in a large number of trading outlets within the territory in which the legislation concerned is applicable being closed on Sundays. Notwithstanding the differences in scope and conditions between the provisions in question, it follows from their general tenor that they have a definite (and pro rata) impact on sales of both national and imported products.

In view of the importance of this point I should like to add the following observation. A comparative examination of the situation in the other Member States leads to the conclusion that the closing of shops on Sundays is general within the Community. ( 7 ) Such a review reveals numerous differences in geographical and temporal scope (in certain Member States shops must already shut on Saturday afternoon, in others only on Sunday afternoon), detailed rules of application (including derogations from the primary rule) and legal basis (statutory provision relating to trade regulation or to labour law, administrative decree, collective labour agreement, decision of a trade association, or even custom). In every Member State the sale of national and imported products is therefore impeded to a greater or lesser extent as a result of the closure of shops on Sunday. It seems to me a hopeless task to differentiate between the national or even regional provisions or customs in the matter in the Member States in order to determine whether or not one situation or another falls under the prohibition contained in Article 30 of the Treaty. A certain degree of generalization in the assessment of these rules and practices therefore seems to me, in the context of the free movement of goods, to be entirely justified.

10.

B & Q also seeks to demonstrate that these judgments must be distinguished on account of differences between the facts underlying them. It argues that if in Conforama and Marchandise the Court had had before it the evidence which was available in Torfaen, even having regard to the differences between the national provisions concerned, it would most probably have come to a different conclusion.

On this point I can be brief. In my Opinion in the Conforama/Marchandise case I stated that the facts of Case C-312/89 (Conforama), as expressly stated by the national court, were analogous to those of Torfaen: both cases involved undertakings operating in a sector which deals to a large extent in products imported from other Member States and in which a considerable proportion of sales is made on Sundays, so that closure on Sundays has the effect of reducing the volume of sales and thus the volume of imports from other Member States. ( 8 ) I therefore see no reason to distinguish Torfaen from Conforama and Marchandise on account of factual differences either.

The applicability in principle of Article 30 of the EEC Treaty and the Court's recent case-law

11.

The first question raised by the House of Lords seeks to obtain a definite answer with regard to the consequences of the Court's judgments in Conforama and Marchandise for the United Kingdom Sunday trading rules. In those judgments the Court concluded that

‘It must therefore be held that the prohibition contained in Article 30 of the Treaty, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays (after 12 noon).’ ( 9 )

This judgment caused confusion in Great Britain inasmuch as it departed from the formula used in Torfaen. In that judgment the Court stated that

‘Article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind.’ ( 10 )

In addition the Court stated that:

‘The question whether the effects of specific national rules do in fact remain within that limit is a question of fact to be determined by the national court.’ ( 11 )

12.

According to B & Q, it follows from those judgments, as was rightly emphasized in Torfaen, that the prohibition contained in Article 30 of the EEC Treaty is in principle applicable: the Sunday trading ban contained in the Shops Act does amount to a measure having equivalent effect within the meaning of Article 30. The Court was therefore right to leave it to the national court to assess the proportionality of the rules, the actual objective pursued by them and their justification under Community law.

On the other hand, the City Councils of Stoke-on-Trent and Norwich and the United Kingdom submit that it follows from Conforama and Marchandise that the prohibition contained in Article 30 is not applicable to national rules which, as in Torfaen, prohibit retailers from opening their shops on Sundays for the sale of certain goods to customers. The City Councils argue that as regards the reply to that question the United Kingdom Sunday trading rules cannot be distinguished from the provisions at issue in Conforama and Marchandise. The ruling in those cases is thus fully applicable to the United Kingdom Sunday trading rules. The United Kingdom goes on to take the view that the proportionality test applied by the Court in those cases is equally applicable to the United Kingdom Sunday trading rules at issue in the Torfaen case.

The Commission also considers that the prohibition contained in Article 30, in accordance with the judgment in Conforama and Marchandise, is not applicable to the United Kingdom Sunday trading rules.

13.

It seems to me that the Conforama and Marchandise judgments and the Torfaen judgment are not in conflict as regards the applicability in principle of Article 30 to provisions such as the United Kingdom Sunday trading ban. The different formulation of the Court's judgment results merely from the fact that in the first-mentioned cases the Court itself assessed the issue of proportionality, ( 12 ) whilst in Torfaen it referred that question to the national court. If the Court had been of the view in Conforama and Marchandise that the French and Belgian labour provisions did not fall within the scope of Article 30 at all, it could have said so straight away. As I have stated, there is a difference between the various judgments in regard to the application of the proportionality test. In this connection it is necessary to provide the referring courts with terms of reference concerning the criteria to be applied and by whom they are to be applied. Only then can the consistency of the Court's case-law on the free movement of goods be safeguarded. It is not acceptable that with regard to the same legislation attracting criminal sanctions for infringements national courts should decide in one case that it is valid under Community law (resulting normally in conviction of the person who has infringed the law) and in another that the law is invalid (normally leading to acquittal).

14.

A study of the Court's recent case law on the free movement of goods reveals, in my view, the following guiding principles.

In the first place, it is clearly established that the Court's broad Dassonville and Cassis-de-Dijon formula continues to apply with undiminished scope. The starting point for the Court's analysis continues to be the finding that ‘all trading rules ... which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’ ( 13 ) are to be regarded as measures having equivalent effect prohibited by Article 30 ‘even though the hindrance is slight and even though it is possible for imported products to be marketed in other ways’. ( 14 ) The only qualification of that rule remains, as a matter of principle, the Cassis-de-Dijon‘rule of reason’: in the absence of common rules (relating to the manufacture of the products in question, orto their marketing) obstacles to free movement within the Community resulting from disparities between national laws must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements; ( 15 ) moreover, the laws must be necessary and proportionate to the objective pursued, and if a Member State has the choice of several different means of attaining the same objective it is under an obligation to use that which is least restrictive of intra-Community trade. ( 16 ) Furthermore, the Court's judgment in Oosthoek, in which the Cassis-de-Dijon formula was applied to legislation relating to the manner in which a product is marketed (in addition to rules on the composition, labelling and presentation of the product itself), has recently been repeatedly reaffirmed: thus Article 30 applies to legislation which restricts intra-Community trade because — by restricting or prohibiting certain forms of advertising and certain means of sales promotion — it may adversely affect marketing opportunities for imported products. ( 17 )

15.

Moreover, the Court's recent case law shows that, in examining whether national legislation pursues an objective justified under Community law, the Court is sympathetic to legislation which reflects lawful socio-economic or socio-cultural policy choices which are consistent with the public interest objectives pursued in the Treaty. Illustrations of this may be found in the Oebel and Cinéthèque judgments. Oebel concerned national legislation which sought to improve working conditions (protection of workers in small and medium-sized bakeries against permanent night work which might damage their health) and the protection of small family businesses against ruinous competition from larger industrial undertakings. ( 18 ) In Cinéthèque the Court held that national legislation providing for a temporary ban on the distribution of films in video-cassette form, in order to encourage the production of films — irrespective of their origin — and thus to protect the film industry, was pursuing an objective justified under Community law. ( 19 )

This approach may also be found in the Court's case law with regard to the provision of services: I am thinking here particularly of the judgments in Koestler (where the Court deemed acceptable legislation barring the legal recovery of gaming debts for ‘reasons founded on the social order’, that is to say reasons of an ethical and political nature), ( 20 )Debauve (in which a prohibition on cable television advertising was held to be acceptable in order to guarantee pluralism in the media), ( 21 ) and Webb (where the Court held a licence requirement for the provision of manpower in the territory of a Member State to be justified in the interests of ‘good relations on the labour market’ and the protection of the ‘lawful interests of the workforce concerned’). ( 22 )

16.

Finally, with regard more specifically to the proportionality test, it seems that the Court regards that test as satisfied where national legislation clearly has no connection, or merely a very indirect or uncertain one, with imports from other Member States or the national legislation in question does not impede imports and exports. ( 23 ) ( 24 )

There is not likely to be any such sufficient link with the restrictions on imports mentioned in Article 30 — so it may be inferred from Cinéthèque, Krantz and Quietlynn — if the legislation in question is clearly not intended to regulate trade between Member States. ( 25 ) Thus legislation whose application is restricted to the marketing of products in the local retail trade or in shop premises (regulation of delivery times of bread to individual customers and retailers in Oebel, prohibition on the sale ‘for consumption on the premises’ of beverages of a high alcohol content in Blesgen; prohibition on the sale of sex articles without a licence in Qtiietlynn) may not be deemed to be a measure having equivalent effect because it clearly cannot obstruct intra-Community trade.

Moreover, it is clear from those and other judgments that the Court will apply the proportionality test itself where, having regard to the information provided by the referring court, there is no possible dispute in that respect. ( 26 )

17.

The Torfaen, Conforama and Marchandise judgments must be seen in the context of this recent case-law. All three judgments implicitly but clearly assume that the rules in question are to be regarded as trading rules under the Dassonville formula. Furthermore, in each of those cases the Court states that the rules in question are not intended to govern the flow of trade between Member States, ( 27 ) that they apply to imported and domestic products without distinction and that the marketing of products imported from other Member States is not made more difficult than the marketing of domestic products. ( 28 ) In addition, it is expressly stated in the three judgments that the compatibility of the rules in question with Article 30 depends on whether the obstacles to trade caused by the rules exceed what is necessary in order to attain the objective in view (proportionality test) and whether that objective is justified under Community law (justification test). ( 29 )

Finally, the Court discusses both those tests. With regard to the justification test, the Court accepts in all three cases that the provisions in issue pursue an objective which is justified under Community law; they reflect certain political and economic choices, inasmuch as they seek to ensure that working and non-working hours are so arranged as to accord with national or regional sociocultural characteristics, the assessment of which, in the present state of Community law, is a matter for the Member States. ( 30 ) As regards the proportionality test, however, a considerable difference is to be observed between the three judgments, as I have already stated (section 13): unlike its approach in the Torfaen judgment (see the quotation in section 11), the Court itself applied the proportionality test in Conforama and Marchandise as follows:

‘It must further be stated that the restrictive effects on trade which may stem from such rules do not seem disproportionate to the aim pursued.’ ( 31 )

It appears from the foregoing that the Court itself replies to the question whether the objective pursued by national legislation is justified under Community law and that in Torfaen it gave an affirmative reply in relation to the United Kingdom Sunday trading rules (see below, section 22). On the other hand, the Court has not yet given a clear ruling on the question who is to apply the proportionality test.

Who is to apply the justification and proportionality tests under Community law?

18.

This question of principle is not as such submitted by the national courts. Nevertheless it is of decisive importance. As may be seen in particular in the preliminary question formulated in Case C-3 04/90, the English courts have inferred from the Torfaen judgment that at least the assessment of the proportionality of the United Kingdom Sunday trading rules is a matter for them. B & Q goes still further in its interpretation of Torfaen: besides the proportionality test, the determination of the actual objective of the legislation and the examination of the question whether that objective falls within the objectives held to be justified under Community law by the Court are, it says, matters for the national courts. Those, it argues, are questions of national law which fall outside the jurisdiction of the Court of Justice, in particular where the objective of the legislation is open to doubt or is disputed.

Reading Borough Council, the Council of the City of Stoke-on-Trent, Norwich City Council, the United Kingdom and the Commission, on the other hand, consider that the justification and proportionality under Community law of a national measure cannot be left to the national courts. If it were, the uniform application of Community law would be placed at risk.

19.

It is clear that, in the context of a reference for a preliminary ruling, it is the joint task of the Court and the national courts to determine whether a national measure is compatible with Community law. The Court's view as a matter of principle on this point is abundantly clear, and is reiterated at the beginning of the judgments in Conforama and Marchandise:

‘It must be observed in limine that although the Court has no jurisdiction, in preliminary reference proceedings, to rule on the compatibility of a national provision with the Treaty, it is nevertheless empowered to provide the national court with all the criteria for the interpretation of Community law which will enable the latter to assess that compatibility for the purpose of giving judgment in the case before it.’ ( 32 )

In my view, the collaboration between the Court and the national courts may be stated as follows. First, the national court must, in the formulation of its question, provide the Court with all the necessary factual information and the national legal framework, ( 33 ) so that the Court is afforded the possibility of making a ruling with full knowledge of the facts. The Court cannot, however, rule on the correctness of that information or legal framework. ( 34 ) The Court must then provide the national court with all relevant information with regard to Community law, including the criteria to be used in assessing the issues of justification and proportionality. Finally, it is for the national court, on the basis of the reply given to it by the Court, to assess the compatibility or incompatibility of national legislation with Community law and to determine the necessary consequences under national law.

20.

With regard specifically to the assessment of justification and proportionality under Community law, the collaboration outlined above in general terms takes the following form.

As regards the assessment of justification, it is for the national court, with the assistance of the parties, to identify as clearly as possible the policy objectives pursued by national legislation and to bring them to the Court's knowledge. ( 35 ) On the other hand, it is for the Court to decide finally whether the objectives thus identified are consistent with an objective pursued by Community law or — where they fall within areas which in the current state of Community law are within the competence of the Member States — whether Community law is in any way opposed to the objectives pursued by the national measure.

With regard to the assessment of proportionality, it is in my view for the Court, and for the Court alone, clearly and imperatively to indicate in its case law the criteria to be used in that assessment (see below, sections 28 to 31). It is then the joint task of the Court and the national court to apply those criteria drawn from existing case-law to the concrete legal and factual context. In that connection the national court, in its order for reference, must give the fullest possible description of the legislation in issue (legal basis, scope, detailed rules and practice governing its application) and its restrictive effect on intra-Community trade. If it appears from the findings of the national court and the arguments submitted to the Court that there is no room for any doubt, the Court itself — as I have already stated (section 16 above) — will state the results of the assessment under Community law. That indeed is what was done in the Conforama and Marchandise cases. If the Court has not itself made an assessment on the basis of the information provided to it, ( 36 ) then the national court, where necessary after further examination of the legislative and factual context, and in the light of the Court's reply to the preliminary question, must arrive at its own decision regarding the application of the proportionality requirement.

The requirement of an objective which is justified under Community law

21.

In its first question Reading and Sonning Magistrates' Court seeks to determine whether the objective underlying the United Kingdom Sunday trading provisions is justified under Community law within the meaning of paragraphs 12 to 14 of the Torfaen judgment. The Magistrates' Court considers that that objective is to ensure ‘so far as possible that shopworkers do not have to work on Sundays, with a view to maintaining what many regard as the traditional English Sunday’.

According to Reading Borough Council and the United Kingdom, that question was answered in paragraph 13 of the Torfaen judgment, and it is sufficient that one of the objectives of the Sunday trading provisions should be justified under Community law for those provisions to be compatible as a whole with Community law. The Commission, too, considers that the Court in Torfaen, as in Conforama and Marchandise, gave an affirmative reply to the question whether the legislation in question pursued an objective justified under Community law.

B & Q, on the other hand, contends that the question put by the Magistrates' Court is based on a false premise. The objective of section 47 of the Shops Act is limited to protecting full-time shop workers. If the question were whether that objective is justified under Community law, the answer would be in the affirmative, provided that the legislation in practice attains that objective and satisfies the proportionality requirement. Pay-less DIY adds that in so far as the Sunday trading ban reflects ‘certain political and economic choices’ made by the United Kingdom Parliament, section 47 is certainly no longer in accord with ‘national or regional socio-cultural characteristics’ in England and Wales. As a result of the increase in part-time working in the retail sector there is little need for legislative protection of part-time workers by means of the Sunday trading ban, since in their case there can be no suggestion of overworking or exploitation by the employer.

22.

Like Reading Borough Council, the United Kingdom and the Commission, I am of the opinion that the question raised by the Magistrates' Court has already been answered in Torfaen itself. It is sufficient in that connection to read the relevant grounds of the judgment (paragraphs 13 and 14). In so far as there might still have been some doubt after Torfaen with regard to the justification under Community law of that objective, it was entirely removed by the judgments in Conforama and Marchandise. There the Court expressly stated that

‘legislation such as the legislation at issue pursues an aim which is justified with regard to Community law. The Court has already held, in its judgment of 23 November 1989 in the Torfaen case, 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 States.’ ( 37 )

It follows unambiguously from those judgments that the United Kingdom Sunday trading provisions pursue an objective justified under Community law, regard being had to the policy choices underlying those provisions. There the matter could rest, were it not for the fact that in judicial pronouncements and academic writing in the various Member States doubts have been expressed concerning the import of these judgments in relation to the grounds of justification recognized by the Treaty or by the Court. I should therefore like to make a few general observations.

23.

The question arises whether, in addition to the grounds of justification exhaustively enumerated in Article 36 of the EEC Treaty and the specific ‘mandatory requirements’ under Article 30 of the EEC Treaty which have hitherto been recognized in the Court's case-law (effectiveness of fiscal controls, fairness of commercial transactions, consumer protection, environmental protection), ( 38 ) the Court also recognizes a general, less specific category of grounds of justification — that is to say, in the terms of Torfaen, Conforama and Marchandise, those ‘which reflect certain political and economic choices... [in accordance] with national or regional sociocultural characteristics, [the assessment of which, ] in the present state of Community law, is a matter for the Member States’.

Before answering that question I should make the following remark. It seems to me that certain further special mandatory requirements may be added to the list of mandatory requirements inherent in Article 30 of the EEC Treaty (which may be relied upon solely in order to justify nondiscriminatory national provisions). I have in mind requirements which are consistent with specific objectives or interests which may be derived from other provisions of the Community Treaties — particularly after the amendments made by the Single European Act — relating more specifically to economic and social policy (for example, the improvement of working conditions), economic and social cohesion, research and technical development and the protection and enhancement of the environment. ( 39 )

The question, then, is whether there is also a place for a general ground of justification for national provisions which reflect political and economic choices in keeping with national or regional socio-cultural characteristics. As the Court's case law now stands an affirmative answer cannot as such be inferred from the judgments concerning such provisions. In Oebel, in which the Court regarded the national provisions in question as ‘a legitimate element of economic and social policy’, the Court immediately added: ‘consistent with the objectives of public interest pursued by the Treaty’, and pointed out that the intention of the legislation was ‘to improve working conditions in a manifestly sensitive [production] industry’. ( 40 ) In Torfaen the Court expressly recognized, referring to Oebel, that national measures relating to the opening hours of shops are also consistent with the objectives of public interest pursued by the Treaty. ( 41 ) Subsequently, it was confirmed in Marchandise that in these measures the ‘objective is worker protection’. ( 42 ) In other words, in those judgments the Court is consciously making a connection with specific mandatory requirements already recognized in the case-law.

24.

It is not my intention in these remarks to preclude the possibility that there may well be a place for a ground of justification generally concerning ‘national rules which reflect certain political and economic choices in keeping with national or regional sociocultural characteristics’. I am thinking of provisions adopted in policy areas which in the current state of Community law (still predominantly economically orientated) lie outside the competence of the Community and are thus not consistent with an essential Treaty objective, but are not contrary to one either. Examples are national provisions concerning questions of a purely political, moral or religious nature or the protection of the cultural and linguistic identity of a people, ( 43 ) whose assessment is undoubtedly, to take the words of the Sunday trading judgments, ‘in the present state of Community law ... a matter for the Member States’. Nevertheless, here too, in order to prevent an undesirable proliferation of grounds of justification, I consider that as close a connection as possible must be sought with the grounds provided for in Article 36 of the EEC Treaty, ( 44 ) the objectives of Community law recognized in the European Treaties and the fundamental rights which form part of the Community legal order, in the light of which those grounds and objectives must be construed. ( 45 )

However that may be, it must in any event be correct that (i) it is in the final analysis for the Court — desirable though it may be for the national court to make its own view known to the Court — to determine whether the objective is justified, and (ii) that a national measure whose objective is justified under Community law must still be assessed against the principle of proportionality. This assessment serves to ensure that a measure which is justified in itself does not nevertheless conflict with the principle of the free movement of goods.

25.

The foregoing general observations permit me to share the view formed by the Court in the Sunday trading cases with regard to the justification under Community law of Sunday trading rules. Whatever may be the reasons for the enactment and retention of the United Kingdom Sunday trading ban, it seems to be clear — as was confirmed by the United Kingdom at the hearing — that those provisions are intended to ensure that shopworkers should not (or as little as possible) have to work on Sundays. That gives them inter alia the possibility of devoting that day to family or friends in nonoccupational activities. In so far as such an objective is aimed at social protection, as the Court has held, it is consistent with one of the objectives of Community law, that is to say the improvement of working conditions and the protection, by means of regular rest periods, of the health of shopworkers. The fact that a specific day, Sunday, is chosen for that purpose reflects a choice in keeping with a national or regional socio-cultural preference in a policy area outside the sphere of competence of the Community; subject to application of the proportionality test, I cannot see why it should be contrary to Community law.

The Community proportionality requirement

26.

In its second question the House of Lords seeks to determine whether it is immediately apparent, whether or not evidence is adduced, that a measure such as the Sunday trading ban is proportionate to the objective pursued, which is justified under Community law. In the event that the reply to that question should be in the negative, the House of Lords seeks in its third question to ascertain on what criteria and by reference to what evidence the national court must determine whether the restrictive effects of the legislation under examination exceed the effects intrinsic to rules of that kind. The first three sub-questions and the sixth sub-question of the second question submitted by the Reading and Sonning Magistrates' Court are along the same lines. The first two sub-questions once again concern the criteria to be applied by national courts: more specifically they concern the question whether and to what extent the criteria mentioned in Article 3 of Directive 70/50 are applicable. The third sub-question seeks to ascertain to what extent the national court, in its assessment of the proportionality requirement, must abide by the conclusion of the national legislature. In the sixth sub-question the national court asks how a national court is to compare the restrictive effects of the legislation with the objective pursued by that legislation.

27.

As I have already stated (section 20), it is ultimately for the national court to assess the proportionality of the national measure in question. I do not think there are any measures in respect of which it is prima facie clear, that is to say without any evidence being adduced, that they satisfy the proportionality test. However, as I have observed, the information provided to the Court by the national court in its reference for a preliminary ruling may be so clear and uncontested with regard to the absence or near absence of any restrictive effect of the legislation on intra-Community trade that the result of the proportionality test is obvious and can be stated by the Court itself.

The reply to the third sub-question raised by the Reading and Sonning Magistrates Court follows from that. In my view the national court may not automatically accept the view of the national legislature or limit itself to deciding whether the national legislature, in the light of the proportionality requirement, could reasonably have adopted the legislative provisions in question. ( 46 ) I think that is clear from the Court's case law, in particular the Miro judgment. ( 47 ) In that judgment the Court expressly rejected an argument put forward by the German Government to the effect that it was for the national legislature to assess the need for a prohibition on the use of the name ‘Jenever’ and that the national courts were bound to follow that assessment:

‘As regards the latter argument, it must be stated that neither Article 30 of the Treaty nor indeed Article 36 reserves certain matters to the exclusive jurisdiction of the Member States. When in order to satisfy mandatory requirements recognized by Community law national legislation creates obstacles to the fundamental principle of the free movement of goods, it must observe the limits laid down by Community law. It is for the Court, which interprets Community law in the final instance, and for the national courts, which reach their decisions on the basis of that interpretation, to ensure that those limits are observed. In the final analysis the German Government's argument amounts to a repudiation of review by the Court and therefore runs counter to the uniformity and effectiveness of Community law. It must therefore be rejected.’ ( 48 )

28.

That brings me to the questions on the criteria to be applied by the national courts, and where appropriate by the Court of Justice, in assessing proportionality. I shall begin by dealing with the questions on the significance of Article 3 of Directive 70/50 ( 49 ) in the application of the proportionality test. The starting point is paragraph 15 of the Torfaen judgment, in which express reference was made to that directive. For the sake of clarity I shall reproduce the text of the relevant provision of the directive:

‘This directive also covers measures governing the marketing of products which deal, in particular, with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products, where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules.

This is the case, in particular, where:

the restrictive effects on the free movement of goods are out of proportion to their purpose;

the same objective can be attained by other means which are less of a hindrance to trade.’

29.

The Magistrates' Court asks first of all whether the national court is required to apply the criteria set out in Article 3 of Directive 70/50. According to Reading Borough Council that is certainly so. By expressly referring in Torfaen to the above-mentioned provision and by adopting its wording, the Court, it argues, indicated that Article 3 of Directive 70/50 accurately reflects the scope of Article 30. In my opinion that interpretation goes too far. Since the expiry of the transitional period (that is to say, since 1 January 1970) Directive 70/50 has played a modest role: the prohibition imposed by Article 30 of the EEC Treaty has since then had direct effect and thus ‘its implementation does not require any subsequent intervention of the Member States or Community institutions’. ( 50 ) In its case-law the Court thus refers to Directive 70/50 — in particular to the list of categories of measures having equivalent effect contained in Article 2(3) — only where the wording of the directive tallies with its settled case-law. ( 51 ) To a certain extent that may be compared with the Court's reference to the general programmes adopted by the Council on the right of establishment and the freedom to provide services, to which it sometimes has regard, since they ‘provide useful guidance with a view to the implementation of the provisions of the Treaty’. ( 52 )

The criteria for the assessment of proportionality under Community law must therefore be found in the Court's case-law. That, I think, also provides the answer to the next question raised by the Magistrates' Court, namely whether a national measure must satisfy each of the criteria mentioned in Article 3(2) of Directive 70/50: here again it is the Court's case-law that is decisive, and not that provision of the directive.

30.

What, then, are the criteria for applying the proportionality requirements at Community law, as they may be deduced from the Court's case-law? As was emphasized twice in the Torfaen judgment, ( 53 ) the starting point is that the restrictive effects of national legislation on intra-Community trade may not exceed what is necessary in order to ensure the attainment of the objective justified under Community law. There are two aspects to that, which may be summarized as follows.

First of all, it must be determined whether the national measure in question is objectively necessary in order to further the attainment of the objective pursued by it. That means that the measure must be relevant (effective), that is to say of such a nature as to afford effective protection of the public interest involved, ( 54 ) and must be essential in order to attain the objective, which implies that the competent legislator does not have an equally effective alternative available to it which would have a less restrictive effect on the free movement of goods. ( 55 ) Secondly, even if the national measure is effective and essential with regard to the objective pursued, it must be determined whether the restriction caused thereby to intra-Community trade is in relation, that is to say proportionate, to that objective. ( 56 ) It may be seen from the foregoing that the proportionality test in the broad understanding of the term essentially contains both a dual necessity criterion (relevance and indispensability of the measure) and a proportionality criterion in the strict sense.

31.

That brings me to the last sub-question (f) of the second question submitted by the Magistrates' Court. In it the national court seeks additional information on the manner in which the restrictive effects on the free movement of goods arising from national legislation must be compared with the objective pursued by that legislation.

That request for clarification is also implicit in the third question submitted by the House of Lords. Here we are concerned with the crux of the proportionality test. It may be seen from the analysis of the proportionality requirement set out above that that assessment comprises various comparisons: first, it must be examined whether the means provided for in the legislation are relevant, that is to say have a causal connection with the objective pursued. Then it must be examined whether the measure in question is essential — that is to say, the objective could not equally well be attained by means of other measures less restrictive of the free movement of goods. That entails comparing two possible measures in the light of the objective pursued. Finally, it must be determined whether the restriction on trade caused by the measure in question is not disproportionate to its objective, which implies the comparison of a specific restriction on trade with the objective pursued.

Each of these comparisons entails the balancing of points of comparison which are not, or not fully, quantifiable. That is particularly true of the last-mentioned comparison, in which two conflicting values are weighed against each other, namely the greatest possible freedom of intra-Community trade and the objective pursued by the national legislation in question. Such a comparison naturally implies an assessment which cannot be made solely on the basis of quantifiable data, but that does not mean that the assessment is impossible. More specifically, in the present cases I think it is clear that the obstacles to intra-Community trade caused by the United Kingdom Sunday trading provisions go no further than is necessary and are not excessive, regard being had to the objective pursued by the legislation. The fact that the legislation, as is expressly confirmed by the Magistrates' Court in its reference for a preliminary ruling, affects domestic and imported products without distinction and pro rata and does not seriously hamper sales through the same channels on the week as a whole (which is confirmed by the forecast mentioned by the Magistrates' Court to the effect that the removal of the ban would have only a limited effect on total imports from other Member States, that is to say about 0.8%) can only support my conclusion, as has already been acknowledged by the Court in the Conforama and Marchandise cases: this is legislation which is not discriminatory, is not intended to regulate trade and whose effects on intra-Community trade are not such as to lead to partitioning of the market.

32.

Again in relation to the application of the proportionality test, the Reading and Sonning Magistrates' Court referred to the Court two supplementary sub-questions (points d and e of the second question). In the first place the Court is asked whether the national court, in assessing the effects of the legislation in question, may take account of the totality of the restrictive effects on intra-Community imports or only of the restrictive effects on imported goods compared to domestic goods. The answer to that is that in its case-law the Court does not restrict itself to the discriminatory effect of national legislation on imported goods, but takes account in its assessment of all restrictions on intra-Community trade caused by the legislation. Even in cases where it is clear that a national measure is applicable without distinction to domestic and imported products and the Court finds that there is no question of any intention to partition markets or manipulate trade flows, it takes as the criterion for the purposes of the proportionality test the totality of the restrictions caused to intra-Community trade. ( 57 )

These authorities also seem to me to provide an answer to the other question submitted by the Magistrates' Court, that is to say the market to be taken into consideration in assessing the restrictive impact of the measure in question. Should this be all intra-Community trade in goods or services, the sector in which the undertaking in question operates, or even the undertaking itself? The final decision must, I think, be based on as complete as possible a set of uncontested empirical data on the actual effects of a specific measure on the totality of intra-Community trade. It seems to me to be an impossible task to define the ‘relevant market’ in a given sector, (series of) products or undertaking. To decide otherwise would entail the risk that a measure could be considered disproportionate — and therefore contrary to Community law — in respect of one specific industrial sector, product or group of products, or undertaking, but not of others.

Remaining questions

33.

I do not need to go into the third question submitted by the Reading and Sonning Magistrates' Court, that is to say whether the United Kingdom Sunday trading rules fall within the sphere of application of Article 36 of the Treaty: the legislation at issue constitutes a non-discriminatory measure covered by the ‘rule of reason’ inherent in Article 30 of the Treaty. Even if it is considered that the United Kingdom Sunday trading provisions in part pursue a public health objective inasmuch as they envisage rest periods for a significant section of the population (see above, section 25), ( 58 ) in relation to non-discriminatory national measures that ground of justification performs the same function as the mandatory requirements inherent in Article 30 of the EEC Treaty. ( 59 ) Moreover, the assessment of proportionality in the context of Article 36 of the EEC Treaty is conducted in the same manner as described above in relation to Article 30 of the EEC Treaty.

I have already, on a previous occasion, replied as follows to the fourth and final question submitted by the Magistrates' Court, that is to say the importance to be attached to the fact that the United Kingdom Sunday trading rules provide for exceptions. ( 60 ) Although I accept that the question of the justification at Community law of a national measure must be decided in the light of the intrinsic characteristics of the measures and their actual application, objections based on the allegedly uneven or inconsistent application of the legislation within the same Member State may well afford a cause of action under national law but — as long as there is no question of deliberate discrimination or disguised restrictions on trade between Member States — not under Community law.

34.

I thus come to the last question, namely the sole remaining question submitted by the High Court in Case C-306/88. It is asked in the event (which has not arisen) that the national measure in question should be found to contravene Article 30 of the Treaty. In such a case, does the prohibition imposed by Community law extend to the application of the legislation to domestic products? According to Rochdale Borough Council, the answer to that must be in the negative: were the Court to declare the Sunday trading provisions to be incompatible with Article 30 of the EEC Treaty and not justified under Article 36, the provisions would become inapplicable only to products imported from other Member States. This approach seems to me to be quite impractical. In the case of simple products the distinction is already difficult to draw (how does one prove for example that a specific kind of fruit which is also grown in Great Britain is or is not imported?), and in the case of composite products, for example machines, cars etc., this method of proceeding is entirely unrealistic. Nevertheless, it must be accepted that Community law is not applicable to a purely domestic situation. ( 61 ) The extent to which partial incompatibility of the measure in question with Community law affects the overall validity of the measure within a Member State is a question of national law.

Conclusion

35.

On the basis of the foregoing considerations I propose that the Court should reply to the questions referred to it in the present cases as follows:

In Case C-306/88:

The prohibition contained in Article 30 of the EEC Treaty is not applicable to a purely domestic situation in a Member State. It is for national law to determine the effect of a finding that a measure is incompatible with Article 30 of the EEC Treaty on the application of that measure to domestic products.

In Case C-304/90:

Legislation of a Member State which prohibits shops from opening on Sundays pursues an objective which is justified under Community law.

In Cases C-304/90 and C-169/91:

(1)

As a matter of principle it is for the national court, on the basis of the criteria laid down in the case law of the Court of Justice and the reply given to it by the Court following a reference for a preliminary ruling, to determine the proportionality of a national measure under Community law. In that connection it must in particular investigate whether the measure, regard being had to its intrinsic characteristics and actual application, is objectively necessary in order to facilitate the realization of its objective — that is to say, it contributes to the attainment of the objective and the legislature has no equally effective alternative at its disposal which would have less restrictive effects on intra-Community trade. In addition, the national court must, on the basis of as complete as possible a set of undisputed empirical data, investigate whether the restrictions on intra-Community trade as a whole occasioned by the measure are in proportion to the objective pursued, which is justified under Community law.

(2)

In so far as the information on the relevant legislation and the facts provided to the Court of Justice by the national court in the preliminary reference procedure is sufficient — and thus not in the absence of evidence — the Court may itself apply the proportionality test, in which case it is for the national court, where the measure is held to be disproportionate, to declare it to be incompatible with Community law and determine the consequences under national law of that declaration.


( *1 ) Original language: Dutch.

( 1 ) Judgment in Case C-145/88 Torfaen Borough Council v B & Q [1989] ECR 3851.

( 2 ) Judgment in Case C-312/89 Conforama [1991] ECR I-997.

( 3 ) Judgment in Case C-332/89 Marchandise [1991] ECR I-1027.

( 4 ) For the first three questions see the Report for the Hearing.

( 5 ) The observations submitted by Payless DIY Limited are supported by Wickes Building Supplies Limited, Great Mills (South) Limited and Homebase Limited.

( 6 ) Conforama and Marchandise [1991] ECR I-997 at p. I-1009, section 5.

( 7 ) For a comparative law review, see amongst others T. Askham, T. Burke and D. Ramsden, EC Sunday Trading Rules, in Current EC Legal Developments Series, London, Butterworths, 1990. See also EC Commission, Measures taken in the field of commerce by the Member States of the European Communities, Luxembourg, 1985.

( 8 ) Sec section 5 of my Opinion, cited above.

( 9 ) Conforama judgment, paragraph 13; Marchandise judgment, paragraph 14, with the added phrase in brackets.

( 10 ) Torfaen judgment, paragraph 17.

( 11 ) Torfaen judgment, paragraph 16.

( 12 ) Conforama judgment, at paragraph 12; Marchandise judgment, at paragraph 13.

( 13 ) Judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5. For recent applications of this formula see, ¡titer alia, the judgments in Case C-239/90 Boiclier [1991] ECR I-2023, paragraph 13; Case C-287/89 Commission v Belgium [1991] ECR I-2233, paragraph 16; and Joined Cases C-1/90 and C-176/90 Aragonesa [1991] ECR I-4151, paragraph 9.

( 14 ) Judgment in Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de Meern [1984] ECR 1797, paragraph 13; judgment in Case 269/83 Commission v France [1985] ECR 837, paragraph 10; judgment in Case 103/84 Commission v Italy [1986] ECR 1759, paragraph 18.

( 15 ) See judgment in Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein [1979] ECR 649, paragraph 8; see most recently, inter alia, judgments in Case C-362/88 GB-Inno-BM [1990] ECR I-667, paragraph 10; Case C-241/89 SARPP [1990] ECR I-4695, paragraph 31; and Case C-238/89 /W/[1990] ECR I-4827, paragraph 12.

( 16 ) Cf. more recently inter alia the judgment in Case 407/85 Drei Glocken v USL Centro-Sud [1988] ECR 4233, paragraph 10; judgments in Case 382/87 Buet [1989] ECR 1235, paragraph 13; Case C-269/89 Bonfait [1990] ECR I-4169, paragraph 11; SARPP judgment, paragraph 31; Pall judgment, paragraph 12.

( 17 ) Judgment in Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR 4575, paragraph 15; that rule was recently re-affirmed in Buet (paragraphs 7 to 8), GB-Inno-BM (paragraph 7), SARPP (paragrapli 29), Boscher (paragraph 14) and Aragonesa (paragrapli 10); see also the judgments in Case C-369/88 Delattre [1991] ECR I-1487, paragraph 50, and Case C-60/89 Monteil and Samarmi [1991] ECR I-1547, paragraph 37.

( 18 ) See judgment in Case 155/80 Oebel [1981] ECR 1993, paragraph 4, and the facts of the judgment at p. 1998, where the German Government explains this second objective.

( 19 ) Judgment in Joined Cases 60 and 61/84 Cinéthèque v Fédération Nationale des Cinémas Français [1985] ECR 2605, paragraph 23.

( 20 ) Judgment in Case 15/78 Société Générale Alsacienne de Banque v Koestler [1978] ECR 1971, paragraph 5.

( 21 ) Judgment in Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, paragraph 15; judgment in Case 352/85 Bond van Adverteerders [1988] ECR 2085, paragraph 38.

( 22 ) Judgment in Case 279/80 Webb [1981] ECR 3305, paragraphs 18 and 19.

( 23 ) There are various illustrations of this: judgment in Oebel, cited above; judgments in Case 75/81 Blesgen [1982] ECR 1211; Case 148/85 Direction générale des impôts v Forest [1986] ECR 3449; Case C-69/88 Krantz [1990] ECR I-583; Case C-23/89 Quietlynn and Richards v Southend Borough Council [1990] ECR I-3059; and Case C-350/89 Sheptonhurst v Newham Borough Council [1991] ECR I-2387.

( 24 ) In connection with the freedom to provide services there was recently a hint of this idea in the Grogan judgment: the link between the provision of information in one Member State on the clinical termination of pregnancies in another Member State and the pregnancy termination service itself (carried out by a provider of services completely independent of the providers of the information, themselves established in the first Member State) was held by the Court to be too tenuous for a constitutional prohibition applicable in the first Member State on the provision of information to be regarded as a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (judgment in Case C-159/90 SPUC v Grogan [1991] I-4685, paragraph 24).

( 25 ) Cinéthèque judgment, paragraph 21; Krantz judgment, paragraph 10; Quietlynn judgment, paragraph 11.

( 26 ) Sec inter alia the recent judgments in Buet, GB-Inno-BM, Boschcr and Aragonesa, already referred to; ef. also the judgments in Case C-241/89 SARPP [1990] ECR I-4695, paragraph 21; Case C-347/89 Enrim-Phann [1991] I-17-17, paragraphs 27 to 35; Case C-39/90 Denhavit [1991] ECR I-3069, paragraph 24; Joined Cases C-13/91 and C-113/91 Debits [1992] ECR I-3617, paragraphs 24 and 25. Illustrations can also be found in other areas of Community law; see for example, with regard to the provision of services, the recent judgment in Case C-288/89 Conda [1991] ECR I-4007, paragraphs 23 and 24.

( 27 ) Torfaen judgment, paragraph 14 in fine; Conforama judgment, paragraph 8; Marchandise judgment, paragraph 9.

( 28 ) Torfaen judgment, paragraph 11; Conforama judgment, paragraph 9; Marchandise judgment, paragraph 10.

( 29 ) Torfaen judgment, paragraph 12; Conforama judgment, paragraph 10; Marchandise judgment, paragraph 11.

( 30 ) Torfaen judgment, paragraph 14; Conforama judgment, paragraph 11; Marchandise judgment, paragraph 12.

( 31 ) Conforama judgment) paragraph 12; Marchandise judgment, paragraph 13.

( 32 ) Conforama judgment, paragraph 6; Marchandise judgment, paragraph 7.

( 33 ) The Court has repeatedly emphasized that the need to arrive at a useful interpretation of Community law makes it essential to define the legal context within which the interpretation requested must be placed: see judgments in Case 244/78 Union Laitière Normande v French Dairy Fanners [1979] ECR 2663, paragraph 5; and Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers [1981] ECR 735, paragraph 6.

( 34 ) That is settled case law: sec, inter alia, judgment in Case 101/77 Oehlschlager v Hauptzollamt Emmerich [1978] ECR 791, paragraph 4; judgment in Case 167/84 Hattptzollamt Bremen-Freihafen v Driblen [1985] ECR 2235, paragraph 12.

( 35 ) On the question whether it is desirable for there to be contact between the Court and national courts where certain elements arc missing from the preliminary reference, I would refer to T. Koopmans, ‘The Technique of the Preliminary Question —A View from the Court of Justice’, in Article 177 EEC: Experiences and Problems, H. Schermers et al. (eds.), The Hague, T. M. C. Asser Institute, 1987, p. 327, at p. 333: ‘It would be a great help if the Court of Justice could make contact with the referring court if it should discover that some elements of information arc missing. Rules of procedure applicable to the national courts make it impossible, however, for most of them to reopen the case after having suspended it when they put their questions to the Court of Justice. In particular, national rules on litigation before civil and criminal courts — as opposed to administrative courts or tribunals — are normally too strict to permit an exchange of information after the order for a reference has been made.’

( 36 ) It may be inferred from judgments such as those recently delivered in Case 12/88 Schäfer Shop v Minister van Economische Zaken [1989] ECR 2937, paragraph 23, and Case C-367/89 Richardt [1991] ECR I-4621, paragraph 25, that the Court does refer the assessment of proportionality more frequently to the national court.

( 37 ) Conforama judgment, paragraph 11; Marchandise judgment, paragraph 12.

( 38 ) With regard to the freedom to provide services the Court has for some considerable time recognised the protection of workers as an ‘imperative public interest requirement’ justifying a restriction on intra-Community trade: that occurred for the first time in Webb, cited above at note 22, paragraph 19 of the judgment; cf. most recently the judgments in Case C-288/89 Gouda, cited above at note 26, paragraph 14, and in Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 18.

( 39 ) In some cases the Court does not await recognition of an objective in a Treaty provision in order to regard it as an imperative requirement. For example, the Court regarded environmental protection as an essential Community objective well before the entry into force of the Single European Act: see judgment in Case 240/83 ADBHU [1985] ECR 531, paragraph 13. In the Webb judgment, too, (see note 38) the protection of workers was also recognized, this time in connection with the freedom to provide services, as an ‘imperative public interest requirement’, some considerable time before the entry into force of the Single European Act.

( 40 ) Oebel judgment, paragraph 12.

( 41 ) Torfaen judgment, paragraphs 13 and 14.

( 42 ) Marchandise judgment, paragraph 19.

( 43 ) With regard to the relationship between a policy for promoting a national language as an expression of national identity and culture and freedom of movement for workers, see the judgment in Case C-379/87 Groener v Minister of Education [1989] ECR 3967.

( 44 ) Indeed, it is far from hypothetical that such provisions may be able to rely on the grounds mentioned in that provision of ‘public morality, public policy or public security (or) the protection of national treasures possessing artistic ... value’.

( 45 ) Sec, in relation to the freedom to provide services (Articles 66 and 56 of the EEC Treaty), the judgment in Case C-260/91 Elliniki Radiopboma Tileorasi [1991] ECR I-2925, paragraph 45. With regard to the freedom to provide services the Court has held, moreover, in the recent judgments on the Netherlands ‘Mediawet’ that a national cultural policy, connected, through the operation of a pluralistic broadcasting system, with the protection of freedom of expression, may constitute a imperative public interest requirement justifying a restriction on the freedom to provide services: Gondii judgment, paragraph 23; Case C-288/89 Commission v Netherlands, paragraph 30.

( 46 ) That approach appears to have been taken in the judgment of the High Court of Justice, Chancery Division, in Stoke-on-Trent City Council v B & Q pic and Norwich City Council v B & Q pic, [1991] WLR 42.

( 47 ) Judgment in Case 182/84 Miro [1985] ECR 3731.

( 48 ) Miro judgment, paragraph 14.

( 49 ) OJ, English Special Edition 1970 (I), p. 17.

( 50 ) Judgment in Case 74/76 Iannelli v Meroni [1977] ECR 557, paragraph 13. In any event the directive was regarded by the Commission mainly as a set of guidelines. A. Matterà confirms that ‘the objective of the Commission was to lay down an “authoritative point of reference” based on its experience acquired in investigating numerous cases of “measures having equivalent effect”, in order to enable Member States to be better acquainted with the extent of their obligations in the matter’: Le Marché Unique Européen. Ses règles, son fonctionnement, Paris, Jupiter, 2nd Edition, 1990, p. 42.

( 51 ) I think that is clearly to be seen in the judgments in Case 56/87 Commission v Italy [1988] ECR 2919, paragraph 7, and Case C-249/88 Commission v Belgium [1991] ECR I-1275, paragraph 7 in fine, where it is stated: ‘this interpretation of Article 30 [that is to say, that provided for in Article 2(3)(c)-(e) of Directive 70/50] is confirmed by the Court's settled case law’.

( 52 ) See inter alia the recent judgment in Case 63/86 Commission v Italy [1988] ECR 29, paragraph 14.

( 53 ) In paragraphs 12 and 15.

( 54 ) Cf. the wording adopted by the Court in Case 25/88 Wiirmser [1989] ECR 1105, paragraph 13.

( 55 ) The criterion set out in the last indent of the second sub-paragraph of Article 3 of Directive 70/50 is to the same effect as this latter aspect of the necessity test.

( 56 ) In other words this is an application of the test mentioned in the first indent of the second sub-paragraph of Article 3 of Directive 70/50.

( 57 ) In particular in the Cméthèqitc judgment, paragraph 22, and in the Torfacn judgment, paragraph 12.

( 58 ) Cf. my Opinion in Torfaen, at section 30.

( 59 ) See the Aragonesa judgment, cited above (note 13), paragraph 13, and my Opinion in that case, at section 14.

( 60 ) See my Opinion in Torfaen, section 32 at p. 3883; it was already clear in Torfaen that there were significant doubts as to the effectiveness of the United Kingdom Sunday trading rules: ibid., footnote 54.

( 61 ) This has been repeatedly affirmed by the Court, in particular with regard to freedom of movement for workers (see, most recently, the judgment in Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341), freedom of establishment (see inter alia the judgment in Joined Cases C-51/88, C-91/88 and C-14/89 Nino [1990] ECR I-3537) and freedom to provide services (sec the recent judgment in Case C-60/91 Morais [1992] ECR I-2085).

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