Today, the CJEU held in Pelckmans Turnhout II that the Belgian requirement for businesses to observe one day of rest per week cannot be contested on the basis of EU law.
The facts of the case were simple: Garden centers were kept open seven days per week. Their owners argued that the Belgian provision prescribing one day of rest were contrary to EU law as they discrimintated businesses established outside railway stations, airports, port areas etc, where exceptions to the rule applied. Amongst others, they based their claim on the UCP-Directive. With its judgement of 4 October 2012 (Pelckmans Turnhout I), the CJEU had already decided that the UCP-Directive did not apply to the contested national legislation as the latter 'does not pursue consumer protection objectives'.
In today's decision, the Court held that the princliples of equality and non-discrimination weren't applying either, the reason for this being that the subject matter didn't have any connections with EU law (paras 17-23). This point of the judgment is highly interesting as it concerns the question of when Member States are implementing EU law. Only then the Charter of Fundamental Rights is adressed to them (Art 51(1) Charter). The outcome is surprising, as the CJEU usually finds ways to 'bring' the referred questions under its jurisdiction.
The Court recaps its case law stating that the treaty provisions on the free movement of goods do not apply to (non-discriminatory) national rules concerning the closure of shops (para 24). The same is true for the treaty provisions of the freedom to provide services (para 25), which is why the Court didn't have jurisdiction to answer the question referred to it. As a consequence, the Belgian law on the closure of shops is still applicable and shops generally must be kept closed for one day per week!
