Belgium: ECJ Reconfirms Compatibility Of Belgian Opening Hours Legislation With EU Law

In a judgment of 8 May 2014, the Court of Justice of the European Union ("ECJ") held that it has no jurisdiction to examine the compatibility of the Belgian opening hours legislation with (i) the principles of equality and non-discrimination laid down in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union (the "Charter"), read in the light of Articles 15 and 16 of the Charter; and (ii) the free movement of goods and the freedom to provide services laid down in Articles 34 through 36 and Articles 56 and 57 of the Treaty on the Functioning of European Union ("TFEU") (ECJ, case C-483/12, Pelckmans Turnhout NV v. Walter Van Gastel Balen NV, Walter Van Gastel NV, Walter Van Gastel Lifestyle NV and Walter Van Gastel Schoten NV).

The ECJ gave its judgment in response to a preliminary reference from the Belgian Constitutional Court (the "CC"). The CC itself had received questions from the Antwerp Commercial Court (the "Commercial Court") in the context of legal proceedings which the garden centre Pelckmans Turnhout NV ("Pelckmans") had initiated against its competitor, garden centre Walter Van Gastel ("Van Gastel"), for failure to observe one weekly closing day.

In essence, the CC wanted to know whether the fact that the Belgian Law of 10 November 2006 on opening hours in commerce, crafts and services (Wet van 10 november 2006 betreffende de openingsuren in handel, ambacht en dienstverlening/Loi du 10 novembre 2006 relative aux heures d'ouverture dans le commerce, l'artisanat et les services – the "Law of 10 November 2006") exempts certain types of traders from the requirement to observe one weekly closing day is discriminatory towards the traders who do have to comply with this requirement. Furthermore, the CC sought to know whether the Law of 10 November 2006 satisfies the principles of free movement of goods and freedom to provide services.

In the judgment, the ECJ reiterated its established case law pursuant to which it only has jurisdiction if a legal situation comes within the scope of EU law. Accordingly, the ECJ had to examine whether the provisions governing the free movement of goods (Articles 34 through 36 TFEU) and the freedom to provide services (Articles 56 and 57 TFEU) apply to the main proceedings.

The ECJ reached a negative conclusion for the following three reasons.

First, the ECJ noted that there was nothing in the CC's order for reference or in the written observations submitted to the ECJ establishing a connection between the facts in the main proceedings and the TFEU provisions governing the free movement of goods and the freedom to provide services.

Second, specifically regarding the provisions governing the free movement of goods, the ECJ recalled that these provisions do not apply to national rules concerning the closure of shops that are enforceable against all economic operators pursuing activities within the national territory and that affect, in the same way, in law and in fact, the sale of domestic products and of products from other EU Member States.

Third, the ECJ considered that the provisions governing the freedom to provide services do not apply because (i) the Belgian opening hours legislation apply to all traders exercising their activity in Belgium; (ii) the purpose of the legislation is not to regulate the conditions concerning the establishment of the undertakings concerned; and (iii) any restrictive effects which the legislation might have on the freedom of establishment are too uncertain and indirect for the obligation laid down to be regarded as being capable of hindering that freedom.

In view of this finding of inapplicability of the provisions governing the free movement of goods and the freedom to provide services, the ECJ held that it also lacks jurisdiction under the Charter. In this regard, it emphasised that the provisions of the Charter cannot, of themselves, form the basis for its jurisdiction.

Therefore, the ECJ concluded that it does not have jurisdiction to answer the question referred by the CC.

This is the ECJ's second ruling on the Belgian opening hours legislation. Both rulings were given in the context of the dispute between Pelckmans and Van Gastel. In addition to referring a question to the CC, the Commercial Court had also made a preliminary reference directly to the ECJ. In that reference, the Commercial Court had addressed questions to the ECJ on the compatibility of the opening hours legislation with Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices (the "Unfair Commercial Practices Directive"). By order of 4 October 2012, the ECJ confirmed that the Belgian opening hours legislation is compatible with the Unfair Commercial Practices Directive (ECJ, case C-559/11, Pelckmans Turnhout NV v. Walter Van Gastel Balen NV, Walter Van Gastel NV, Walter Van Gastel Schoten NV and Walter Van Gastel Lifestyle NV – see, VBB on Belgian Business Law, Vol. 2013, No. 1, p. 10, available at www.vbb.com).

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