Prohibition of Sales on Public Holidays and the Ruling of the Constitutional Court of the Czech Republic

By Martin Spicka, Martina Kopcová

05-2019

The main aim of the Act No. 223/2016 Coll., on Retail and Wholesale Opening Hours, as amended ("Act on Opening Hours" or "Act") that came into effect on 1 October 2016 is to regulate retail and wholesale opening hours so as to prescribe a general prohibition on sales on certain (but not all) public holidays and to restrict sales on the Christmas Eve in the Czech Republic.

However, the restriction, or prohibition respectively, of opening hours does not apply to shops the sale space of which does not exceed 200 m2, petrol stations with fuels and lubricants, pharmacies, shops in places of increased concentration of passengers at airports, railway stations and bus stations, shops in health care facilities and retailers and wholesalers at times when the state of danger, state of emergency or state of war is declared.

Background of the legislation

The Act on Opening Hours has prompted controversial reactions right from the outset of its legislative process. The reason for adopting the Act on Opening Hours was (i) to regulate an area of relations that had not yet been regulated by legislation, and, at the same time (ii) to take into account the values of the European Union which place particular emphasis on the reconciliation of work and family life.

Constitutional complaint

In December 2016, a group of senators filed a constitutional complaint, in which they sought the annulment of the Act arguing with its inconsistency with the equality of people in their rights, with the right to privacy and the principle of autonomy of will, with the right of freedom of undertakings, with the right to acquire livelihood through own means and with the principle of minimizing interference with fundamental rights.

The Constitutional Court did not accept arguments presented by senators and rejected the complaint. In its decision, the Court stated that in relation to the argument of equality of people in their rights, the limitation of certain business activities had been commonly seen in the past and further that the limitation of sales or production during public holidays has been a tradition for over a century.

Submitted argument as to inconsistency with the principle of autonomy was rejected on the ground that it does not correspond to social reality, as it is not the employee who decide about the presence at work during public holidays, but it is rather the employer according to the Labour Code.
Further, the Court explained that despite the fact that the chosen legal instrument does interfere with the right of freedom of undertakings, the interference is only marginal and therefore, the limitation does not affect the main objective of the right.

In conclusion, the Court stated that there are better, more appropriate or more effective means to achieve the desired goal. As an example the Court referred to a possibility to amend the Labour Code, for example by increasing the remuneration for work carried out on public holidays. Nevertheless, the Court concluded that the present legislation cannot be regarded as in particularly irrational and therefore the legal instrument passed the test of rationality.

Finally, at present, there are two contradictory proposals in the Chamber of Deputies of the Czech Republic, one of which (submitted on 8 June 2018) seeks to amend the Act so as to exclude wholesalers from the scope of the existing legislation ("Amendment"), while the second one (submitted on 12 September 2018) seeks to repeal the Act ("Proposal for Annulment").

Amendment proposal

The Amendment seeks to exempt wholesalers from the scope of the Act, the reason being that wholesalers constitute an intermediary link between production and retailers, as they buy goods from the manufacturer and sell them to retailers. By including wholesalers in the scope of the Act, a risk arises to supplying retailers with fresh-food or perishable products, which in turn cause problems to gastronomic establishments that are open but cannot purchase fresh goods from wholesalers as well as to establishments with continuous services (health institutions, hotels, hostels, accommodation facilities, social institutions, orphanages). Instead of exempting wholesalers from the scope of the Act, the Senate proposed to repeal the Act and returned the amendment back to the Chamber of Deputies. At present, the amendment is in the Chamber of Deputies to be reviewed and voted on.

Proposal for Annulment of the Act

The Act was threatened by a proposal for annulment already in 2017, but that proposal was rejected. The current proposal for annulment of the Act uses, like the previous one, arguments such as a non-systemic intervention by the legislator in human lives which consists in setting a prohibition on selling only in selected shops, randomness of selecting only certain public holidays, and creating inequalities between different groups of undertakings and employees without a rational reason.


 

Authors

Kopcova_Martina_WEB

Martina Kopcová

Associate
Czech Republic

Call me on: +420 226 030 500

Martin Špička

Counsel, Prague
Czech Republic

Call me on: +420 226 030 500