Judgment Pl. ÚS 37/16 - Opening Hours in Retail and Wholesale on Public Holidays

28 February 2019

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On 26 February 2019 the Plenum of the Constitutional Court (judge rapporteur David Uhlíř) dismissed motion to annul Act on the Opening Hours in Retail and Wholesale on Public Holidays.


The contested Act regulates the opening hours of wholesale and retail establishments of the sales area exceeding 200 m² on selected public holidays and bank holidays. Any violation of the prohibition of the sale on the selected days is sanctioned as an administrative offence and may be subject to a penalty imposed by the Czech Trade Inspection. The petitioners alleged that the Act is in direct contradiction with four constitutionally guaranteed rights, out of which two are fundamental human rights and two economic and social rights. Specifically, they include the equality of all people in their rights (Art. 1 of the Charter of the Fundamental Rights), the right to privacy and the principle of the autonomy of will guaranteed by Art. 4 and Art. 7 of the Charter; the right to engage in enterprise guaranteed by Art. 26 (1) of the Charter, and the right to acquire the means for one’s livelihood by work (Art. 26 (3) of the Charter).

At the outset, the Constitutional Court stated that it first has to decide whether the contested act would be subject to a stricter proportionality test or a more lenient rationality test and it concluded that carrying out the rationality test would be sufficient in this case. In relation to this, it also stated that the contested act would stand the first two steps of the test, i.e. the definition of the essential content of the economic, social or cultural right and the assessment regarding whether the required claim concerned the core of this right.

When assessing the legitimacy of the objective of the legal regulation (the third step of the test), this objective may be inferred not only from the statement of reasons, but also from the commonly known facts. These include strengthening the social and family cohesion by strictly defining at least a certain dimension of the firmly determined spare time which people may spend together. In this respect, the Constitutional Court states that it is the legitimate aim of the act to allow employees to commemorate public holidays which form part of the Czech cultural and spiritual tradition. Similarly, it is also legitimate to remind everyone else that it is advisable to avoid the shopping rush on some days and engage in other activities with a more spiritual focus, either in the family circle or in the company of those who share the same values. At the same time, it is impossible to agree with the Petitioners’ objection concerning an inadmissible restriction of the right to acquire the means for one’s livelihood by work. Even though restricting sales for seven and half days in a year makes it impossible for employees to work on these days, it is necessary to take into consideration that even within the remaining 357.5 days, they cannot work for the same employer at their own discretion, as in addition to their physical capacities, they are also limited by their statutory working hours and the work offered by the employer.

The Constiutional Court stated that, on the contrary, it did not consider it a legitimate goal in the form of a positive impact on small and medium-sized enterprises to limit the indirect competition of large entrepreneurs. Restricting competition and favouring some entrepreneurs at the expense of others amounts to a violation of the principle enshrined in Art. 4 (4) of the Charter. However, in the instant case, the declared objective only causes insignificant restrictions on competition and the principle of equality, and it may thus be accepted.

Furthermore, the Constitutional Court dealt with the suitability of the act to achieve the intended effect. For millennia, our civilized circle has followed the principle that it is necessary that people be not required to work every day without rest, and for this reason at least one day per week has been reserved as a day of rest even in the form of various religious orders. In a democratic society, one may observe a lasting rivalry between a legislature wishing to regulate a citizen’s right to fixed days of rest, and a businessperson or consumer wishing to do business and enjoy material benefits even on a holiday. In recent decades, however, regular rotation of working and holiday days in the week has been loosened, both to the detriment of family life and to the detriment of personal satisfaction. The introduction of certain days of the year which will generally be perceived as non-working days represents a reduction in such harm. In this respect, the act is appropriate for the objective pursued.

In the last fourth step of the rationality test, it was necessary to answer the question whether the legal means to achieve the goal is reasonable, though not necessarily the best, most appropriate, most effective or wisest. The Constitutional Court stated that there are even better, more appropriate and more effective means to achieve the objective. If the legislature had wished to achieve the intended effect, it could have done so by parametric changes in the labour-law regulations, for example by increasing the remuneration for work on public holidays, rather than by adopting a special regulation. Nevertheless, it cannot be stated that the legal regulation under review was exceptionally irrational, and therefore the Constitutional Court concluded that the contested act would stand the rationality test. It is a matter of legislative discretion to decide which public holidays and bank holidays and how many of these days need to be supported by prohibiting certain occupational activities. If the regulation of opening hours is not contrary to the values of the constitutional order and does not deviate from the national and state traditions, it is not appropriate for the Constitutional Court to intervene in any such decision of the legislature.