The return of Sunday Trading before the Court of Justice of the EU

The compatibility of restrictive national regimes on Sunday trading with the internal market law have long discussed in the past. The Court of Justice of the EU (CJ) has recently dealt with this issue again in Pelckmans Turnhout v Van Gastel (C-483/12).
Van Gastel opened its garden centres to the public seven days a week. The plaintiff Pelckmans brought proceedings against Van Gastel before the Commercial Court of Antwerp, arguing that by opening its shops the whole weak the defendant breached the Belgian laws that prohibits traders from opening their establishments seven days a weak but for some exceptional cases.
The defendant submitted that the provisions were contrary to Belgian Constitution and the Court referred the constitutionality question to the Constitutional Court. Then, the Constitutional Court stayed proceedings and referred to the CJ, among other things, the question whether the contested national provisions breached Articles 34 and 36 TFEU on the free movement of goods.
The CJ ruled out that it had jurisdiction on the referred questions since the referring court failed to demonstrate that the matters examined in the main proceedings fell within the scope of EU law. Notwithstanding that, however, the CJ said that the Keck doctrine applies to ascertain the compatibility of the national provisions with the principle of free movement of goods. National rules limiting the times at which goods could be sold, as it is the case with Sunday trading rules discussed in Pelckmans Turnhout v Van Gastel, have been consistently qualified since Keck by the CJ as selling arrangements. And, as the CJ ruled in Keck selling arrangements, provided they are applied in the same manner for national and imported products, fall outside the prohibition in Article 34 TFEU. So, Keck is still good law.

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