Procesos penales contra Tankstation 't Heukske vof y J. B. E. Boermans.

• Jurisdiction: European Union
• Date: 16 March 1994
• Court: Court of Justice (European Union)

Important legal notice

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61992C0401

Opinion of Mr Advocate General Van Gerven delivered on 16 March 1994. - Criminal proceedings against Tankstation 't Heukske vof and J. B. E. Boermans. - References for a preliminary ruling: Gerechtshof 's-Hertogenbosch - Netherlands. - Free movement of goods - Petrol station opening hours. - Joined cases C-401/92 and C-402/92.

European Court reports 1994 Page I-02199

Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. The joined cases before the Court relate to requests for preliminary rulings from the Economic Chamber of the Gerechtshof (Regional Court of Appeal) te 's Hertogenbosch on the compatibility of the Netherlands Winkelsluitingswet of 23 June 1976 (1) (Law on shop closing, hereinafter referred to as "the Winkelsluitingswet") with Articles 30 to 36 and Article 3(g) in conjunction with Articles 5 and 86 of the EC Treaty. (2) The questions referred for a preliminary ruling were raised in two sets of criminal proceedings pending in the Gerechtshof against Tankstation 't Heukske V.O.F. (hereinafter referred to as "' t Heukske"), on the one hand, and J.B.E. Boermans, on the other.

2. The facts of the two cases are very similar and uncontested. In May 1991, officials of the Netherlands public authorities found that two shops forming part of the "' t Heukske" and "Boermans" petrol stations, both located in built-up areas, were open to the public without a certified notice being affixed at each public entrance in accordance with Article 2(1) of the Winkelsluitingswet. In addition, the officials found that a number of articles which were not "for the road" were being offered for sale without being placed in lockable cabinets. Moreover, in at least one of the shops, tobacco products were being sold otherwise than from a vending machine.

3. 't Heukske and Boermans were prosecuted and found guilty by judgment of 6 November 1991 of the Economische Politierechter (Economic Magistrate) of the Arrondissementsrechtbank (District Court), Roermond. They appealed against that judgment to the Gerechtshof, on the ground, inter alia, that the rules on shop closing laid down in the Winkelsluitingswet and the implementing provisions based thereon (in particular the Decrees of 6 December 1977 and 13 December 1988) were contrary to Community law. Following this, the Gerechtshof decided to refer the following questions to the Court for a preliminary ruling:

"1. Do the provisions of the EEC Treaty, including Articles 30 to 36 or Article 86 in conjunction with Article 3(f) and Article 5 militate against rules which are in themselves lawful on the compulsory closing of shops as laid down in the Netherlands Winkelsluitingswet 1976 and serving as the basis for implementing measures as laid down in the (amended) implementing degree of 6 December 1977 under which operators of inter alia petrol stations, shops in station buildings and at airports, shops in hospitals and museums are or continue to be permitted to offer for sale and to sell smoking accessories, beverages, newspapers, music cassettes and foodstuffs whereas others, including specialized shops are considerably more restricted in their opening possibilities?

2. Must the abovementioned provisions or any other provisions of the EEC Treaty be interpreted as precluding the criminal conviction of operators of petrol stations at the side of the public highway on the basis of the Winkelsluitingswet and the abovementioned implementing decree in so far as those provisions lay down rules for shops in petrol stations which:

(a) in themselves do not affect the opening hours of petrol stations and relate merely to the conditions under which and the times at which certain goods may be offered for sale at those petrol stations;

(b) make a distinction between petrol stations at the side of rijkswegen (national highways) and petrol stations at the side of other public highways, in so far as the former enjoy more freedom to offer for sale tobacco and tobacco products than the latter?

3. Is it relevant to the answer to Question 2(a) and (b) whether as between the two categories of petrol station distinguished in Question 2(b) there exists a difference between the proportion of normal revenue yielded by motor fuels and by other products in so far as the first category is (substantially) less dependent for its revenue on sales of products other than motor fuels than the second category?

4. Is it relevant to the answer to Question 2(a) and (b) and Question 3 that by governmental rules possibly with the involvement of a committee of representatives of petroleum companies, permits for petrol stations at the side of rijkswegen were granted in such a way that priority was thereby given to petroleum companies having a relatively large share of the market?"

4. It is striking that, in its first question, the national court describes the Winkelsluitingswet as constituting "rules" which are "in themselves lawful". It might be inferred from this that the national court is convinced that national rules on the compulsory closing of shops are in principle compatible with Community law, and is asking simply whether it is compatible with Community law for implementing measures based on such rules to impose heavier burdens on some categories of shopkeepers than on others. In common with the Commission, I consider that all the rules on shop closing, including the law on which the implementing measures are based, should be tested against Community law.

The national court' s questions essentially raise two issues. On the one hand, the Gerechtshof wishes to establish whether rules providing for the compulsory closing of shops and making a distinction in that connection as between different categories of economic operators are contrary to Community law, in particular Articles 30 to 36 of the EEC Treaty (Question 1). In fact, as will become clear later in this Opinion, that question is directed towards a very specific type of products, namely tobacco products, the sale of which is more restricted in the case of petrol stations of a particular category than in the case of others (Question 2), whereas it is precisely that category of petrol station which is most dependent for its revenue on the sale of goods other than motor fuels (Question 3). In addition, there is the question whether Community law, in particular Article 86 in conjunction with Articles 3(g) and 5 of the EEC Treaty, precludes rules on the closing of shops which apply the abovementioned distinctions, in particular if those rules are considered in the light of governmental rules on the grant of permits for petrol stations which give a competitive advantage to petroleum companies with a relatively large market share (Question 4).

In this Opinion I shall consider those two issues separately after I have described the national rules in question as precisely as possible in the light of the parties' written observations.

1. Description of the national rules referred to in the national court' s questions

1.1. The Winkelsluitingswet and the decrees adopted to implement it

5. Article 2(1) of the Winkelsluitingswet prohibits opening a shop (3) to the public:

"(a) in the absence, at each public entrance to the shop, of a notice indicating the opening hours; such notice must be affixed in such a way as to be clearly legible from the exterior and must have been certified by or on behalf of the mayor and aldermen;

(b) outside the opening hours indicated ...".

Article 3(2) of the Winkelsluitingswet, in the version in force at the material time, (4) adds as follows:

"In addition, the notice may not be certified if the opening hours displayed thereon indicate that the shop in question is accessible to the public:

(a) on Sundays;

(b) on working days before 5 am;

(c) on Saturdays after 5 pm;

(d) on other working days after 6 pm;

(e) for more than 52 hours a week."

6. The Winkelsluitingswet therefore restricts shop opening hours in the Netherlands in three ways: a maximum number of opening hours is laid down per week (52 hours at the material time); there are earliest opening hours and latest closing hours depending on the day of the week (at the material time: 5 am and 6 pm respectively on working days and 5 am and 5 pm respectively on Saturdays), and compulsory Sunday closing. Despite those restrictions, the Winkelsluitingswet leaves shopkeepers a degree of freedom in so far as they can decide how to distribute the maximum number of opening hours per week over the periods during which the law allows shops to open. In order to prevent that freedom leading to non-compliance with the restrictions described above, Article 2(1)(a) of the Winkelsluitingswet requires shopkeepers to affix at each public entrance a certified notice setting out the opening hours.

7. Two decrees adopted pursuant to the Winkelsluitingswet set out derogations from the general rules. The Decree of 14 December 1976, (5) which makes it possible to grant individual exemptions, (6) is not at issue in this case. In contrast, the Decree of 6 December 1977 "implementing Article 11 of the Winkelsluitingswet 1976" is at issue. Article 11 of the Winkelsluitingswet provides that exemption from the prohibitions laid down in the Law may be granted by "general administrative rules". The Decree of 6 December 1977, which is a "general administrative rule" within the meaning of the Law, grants such exemptions inter alia to museums, chemists and shops selling newspapers and periodicals in, for example, stations, airports or hospitals. Under Article 2 of the Decree, they may, in theory, sell a range of products ° which may or may not be limited (7) ° twenty-four hours a day. For the benefit of road transport, a conditional exemption for petrol stations is also provided for, in accordance with the detailed rules described below.

8. Article 3(1) of the Decree of 6 December...