Constitutional Court upholds shop hours law

In June 2004, Germany’s highest court, the Federal Constitutional Court, ruled that the country’s law that regulates shop opening hours is in line with the Constitution. The Court upheld the ban that prevents most shop from opening after 20.00 from Mondays to Saturdays, and from opening on Sundays and public holidays.

On 9 June 2004, the Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe upheld the law that prohibits shops from staying open after 20.00 from Mondays to Saturdays, and from opening on Sundays and public holidays. The decision was triggered by a legal challenge from a chain of nationwide department stores, Kaufhof Warenhaus, which is a subsidiary of the Metro group. Kaufhof argued that the law was unfair because it exempts some retailers - such as petrol stations and shops in train stations, airports and other places often visited by, for example, tourists - from these restrictions. In other words, the company maintained that retailers faced unfair competition as a result of these exceptions.

The eight-member Court was evenly split. Without an unanimous decision, however, the current regulation need not be changed. The Court said the law was not discriminatory and did not violate the constitutional freedom to practise one’s chosen profession. At the same time, however, the Court said the federal government could give Germany’s federal states (Länder) the power to overhaul shop opening hours. The four judges on the prevailing side argued that the current regulation of shop opening hours was necessary to protect the roughly 2.8 million people who work in retail from doing night work.

The Federal Minister of Economics and Labour, Wolfgang Clement, said that the federal government will think about granting the federal states the right to decide their own regulations on shop opening hours. He expects that 'any far-reaching future opening up of shop opening hours will be a matter for the federal states. This provides the opportunity for a flexible and non-bureaucratic solution.' However, the federal government will first undertake a review to determine whether or not to grant the federal states this right.

While the business community and employers’ federations are largely in favour of extending shop opening hours, trade unions oppose the idea because, they argue, employees would then have to work later. Hermann Franzen, president of the Employers’ Association for the Retail Trade (Hauptverband des Deutschen Einzelhandels, HDE), said that the federal government must act: 'My wish would be a complete lifting of restrictions of shop opening hours, around the clock, from Monday to Saturday.' This would not lead to any significant increase in turnover, but it would eliminate distortions in the competitive environment caused by train stations, airports and petrol stations, he added. Michael Sommer, the chair of the Confederation of German Trade Unions (Deutscher Gewerkschaftsbund, DGB) said: 'This is a good day for all consumers who are interested in having a more-or-less regulated family life.' The United Services Union (Vereinte Dienstleistungsgewerkschaft, ver.di) demanded that the federal government should finally renounce all plans to repeal the law that restricts shop opening hours.

Liberalising German shop opening hours has been debated for decades. Since 1956, when the law came into effect, it has undergone several amendments; these have usually extended opening hours. In 2003, for instance, Saturday opening hours were extended to 20.00 (DE0303203F).