Council of the City of Stoke-on Trent v B & Q Plc ; Norwich City Council v B & Q Plc (Consolidated Appeals)
| Jurisdiction | England & Wales |
| Judge | Lord Goff of Chieveley,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner |
| Judgment Date | 31 March 1993 |
| Judgment citation (vLex) | [1993] UKHL J0331-1 |
| Date | 31 March 1993 |
| Court | House of Lords |
[1993] EWHC J0331-1
House of Lords
Lord Goff of Chieveley
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Ackner
My Lords,
The case which is the subject of the present appeals is one of the line of cases concerned with Sunday trading which have come before the courts in recent years, in which large retailers have sought to argue that section 47 of the Shops Act 1950, which (subject to certain exceptions) prohibits Sunday trading, must be rejected as inconsistent with the prohibition in Article 30 of the Treaty of Rome against "quantitative restrictions on imports and all measures having equivalent effect". In the present case, that argument was rejected by Hoffmann J. [1991] Ch. 48 at first instance; and, after he had indicated that he would be prepared to grant an injunction, asked for by the respondent local authorities, restraining the appellant retailers, B & Q Plc, from opening on Sundays, the appellants gave an undertaking to that effect. The appellants then appealed to your Lordships' House under the leapfrog procedure. However, after hearing argument, your Lordships decided to refer certain questions to the European Court of Justice under Article 177, and the hearing of the appeals was adjourned pending receipt of the answers to those questions by the European Court of Justice. These answers having now been received, the hearing of the appeals has been restored before the Appellate Committee.
The European context in which the question at issue in the present case has arisen is set out in Kirklees Metropolitan Borough Council v. Wickes Building Supplies Ltd. [1993] A.C. 227 at pp. 275–279. It is unnecessary to rehearse the European jurisprudence again in the present case. It is sufficient for present purposes to record that the question of the impact of Article 30 on section 47 of the Shops Act was first raised before the European Court of Justice in the Torfaen case ( Case 145/88) [1990] 2 Q.B. 19. The answer then given by the European Court of Justice (see [1990] 2 Q.B. at p. 53) was that:
"article 30 of the Treaty must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind."
This answer led to a large number of cases up and down this country in which the issue of proportionality was raised and answered as a question of fact, on the basis of evidence from expert witnesses. However, when the present case came before Hoffmann J., he solved the problem on the basis that all the relevant facts were properly matters of judicial notice; and it was on that basis that he dismissed the arguments of the appellants and indicated that he was prepared to grant an injunction.
Before the present appeal first came before the Appellate Committee of your Lordships' House, the European Court of Justice had given judgment in two related cases, known as the Confarama and Marchandise cases ( Cases C 312/89 and C 332/89), concerned with similar although not precisely identical subject-matter to the Sunday trading prohibited by section 47 of the Shops Act. In its judgment in those cases (as to which see [1993] A.C. at pp. 277–279), the European Court of Justice, urged by Mr Advocate General van Gerven to accept the argument of the Commission that assessment of the need for and proportionality of specific legislation cannot be left to the national courts, substantially departed from its previous approach in the Torfaen case. Indeed, at the first hearing of the present appeals before your Lordships, Mr Isaacs Q.C. for the respondents submitted that it was now clear from those decisions of the European Court that in the Sunday trading cases it was no longer appropriate for a national court to investigate any issue of proportionality, and that the Torfaen case should no longer be understood as requiring any such investigation. However, your Lordships' House felt compelled to make a reference to the European Court of Justice under Article 177, and posed three questions for consideration by the court, of which the first was as follows:
"Is the effect of the Court of Justice's rulings in Case C-312/89 Confarama and C-332/89 Marchandise to determine that the prohibition contained in Article 30 of the EEC Treaty does not apply to national rules, such as those in issue in Case 145/88 Torfaen Borough Council v. B & Q Plc which prohibit retailers from opening their premises on Sunday for the serving of customers with certain goods?"
To that question, the European Court of Justice has now provided an unequivocal answer:
"Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays."
Since the other two questions posed for the court only arose if the first question was answered in the negative, the court did not answer them, and they are no longer of any relevance in the present appeals.
This answer makes it plain that the present appeal must fail, and indeed this was accepted by the appellants before the Appellate Committee. The appellants nevertheless referred to the criticisms previously advanced by them of the judgment of Hoffmann J., in relation to his approach to the issue of proportionality, and his invocation of the principle of judicial notice; and they invited your Lordships to express an opinion on the approach so adopted by the learned judge. However, in view of the answer of the European Court of Justice, these matters are no longer relevant. Any comments upon them which your Lordships might make would be obiter; and in these circumstances it would, in my opinion, be undesirable for your Lordships to respond to this...
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