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Provision in Thuringia´s Shop Opening Hours Act granting employees in retail shops two work-free Saturdays per month is constitutional

Press Release No. 13/2015 of 11 March 2015

Order of 14 January 2015
1 BvR 931/12

The provision in the Thuringian Shop Opening Hours Act (thüringisches Ladenöffnungsgesetz – ThürLadÖffG) according to which shop employees must have at least two work-free Saturdays per month is compatible with the Basic Law (Grundgesetz – GG). The First Senate of the Federal Constitutional Court rendered this decision in its order published today. The legislative competence of the Land follows from Art. 74 sec. 1 no. 12 GG, since the Federation did not exhaust its concurrent legislative competence. The provision is also consistent with substantive constitutional law; in particular, the interference with the complainant’s freedom of practicing an occupation is proportional. As far as the legislative competence of the Land as the core of the complaint is concerned, the decision was adopted by 5: 3 votes. Justice Paulus filed a separate opinion.

Facts of the Case and Procedural History:

The complainant, a corporation, operates a retail shop in the furniture sector. It challenges § 12 sec. 3 ThürLadÖffG. Pursuant to sentence 1 of this provision, sales employees must be afforded two work-free Saturdays per month. Pursuant to sentence 2, exceptions may be granted by way of regulation. Pursuant to sentence 3, interests of the employees – particularly the compatibility of family and employment – must be given due regard.

Starting in 1956, the opening hours for retail shops as well as the related workers protection rules were subject to federal regulation by the Shop Opening Hours Act (Ladenschlussgesetz – LadSchlG). With the Federalism Reform in the year 2006, the competence for “law on shop opening hours” was removed from Art. 74 sec. 1 no. 11 GG (old version) and transferred to the Laender. In the year 2006, the Land legislature adopted the Thuringian Shop Opening Hours Act and inserted § 12 sec. 3 ThürLadÖffG in 2011, which is challenged in the case at hand.

Key Considerations of the Senate:

1. The Land legislature was competent to issue the challenged provision.

a) According to Art. 70 sec. 1 GG, the Laender have the right to pass legislation unless the Basic Law confers this right on the Federation. Pursuant to Art. 70 sec. 1 in conjunction with Art. 74 sec. 1 no. 11 GG, the Laender have the legislative competence in the field of shop opening hours, whereas, according to Art. 74 sec. 1 no. 12 GG, labour law including occupational health and safety law are subject to the concurrent legislative competence of the Federation.

b) The challenged provision does not regulate “shop opening hours” and does therefore not fall within the field excepted under Art. 74 sec. 1 no. 11 GG in favour of the Laender.

aa) In Art. 74 sec. 1 no. 11 GG, the Basic Law does not provide a detailed definition of the term “shop opening hours”. According to the general meaning, the term denotes the daily opening hours of retail stores and does not comprise conditions of employment. This is also the genesis of Art. 74 sec. 1 no. 11 GG. The constitution-amending legislature merely changed one competence provision in favour of the Federation (Art. 74 sec. 1 no. 11 GG) although the then existing Shop Opening Hours Act had always been based upon two competence titles (Art. 74 sec. 1 no. 11 GG and Art. 74 sec. 1 no. 12 GG). The Act was assigned to the fields of occupational health and safety as well as to commerce; on the one hand it was intended to counteract excessive competition by arbitrary shop opening hours and on the other hand to ensure occupational health and safety. There is no reason to believe that the amendment of the constitution was intended to confer on the Land legislatures the competence for all provisions so far stipulated in the Federation’s Shop Opening Hours Act. The constitution-amending legislature exclusively focused on its commerce-related aspects.

bb) A regulation on the working hours on Saturdays that entitles employees to work-free time is not intertwined so closely with the law on shop opening hours that it would also be subject to this legislative competence of the Laender. A legislative competence of a Land does not ensue by virtue of related contents. Regulations on working hours affect many parts of working life and are not specifically limited to shop opening hours.

c) Art. 74 sec. 1 no. 12 provides for a legislative competence of the Land of Thuringia for the challenged provisions. In case of concurrent legislation, however, the Laender have legislative competence pursuant to Art. 72 sec. 1 GG as long and in so far as the Federation does not make use of its competence. This is the case here.

aa) The Federation makes use of its competence if a federal law regulates a particular issue exhaustively. The wording, the regulatory purpose, and the legislative history of a law are essential for determining its scope. What is decisive is whether a law regulates a specific matter comprehensively and completely, or whether the legislature’s intention to regulate the matter exhaustively is objectively recognisable.

bb) Accordingly, § 17 sec. 4 of the federal Shop Opening Hours Act (LadSchlG) does not result in a blocking effect preventing the Laender from going beyond the stipulated entitlement to only one work-free Saturday per month by prescribing an additional work-free Saturday.

At the time of its adoption, the federal regulation had a de facto exhaustive effect to the extent that the Laender had no legislative competence regarding shop opening hours. However, there is no indication that § 17 sec. 4 LadSchlG applies to work on Saturdays in such a final manner after the legislative competence for shop opening hours was transferred to the Laender. At that point in time, the federal legislature simply did not have to take this into consideration; from the federal legislature’s point of view at that time, the provision was not formulated as being definitely exhaustive nor is it to be interpreted as definitely exhaustive today.

While the wording of the federal provision limits the entitlement to work-free time to one Saturday per calendar month, it does not objectively determine this to be the final mandatory regulation of working hours. The provision does not indicate that the entitlement to work-free time is to be specifically limited to one Saturday. As a consequence, it may also be regarded as a minimum guarantee. According to the recommendation made by the Committee for Economy and Labour (Ausschuss für Wirtschaft und Arbeit) of the German Bundestag, it was intended to introduce a statutory right guaranteeing “at least” one work-free Saturday per month.

Within its constitutional competence, the federal legislature is, however, free to issue uniform or exhaustive working hours provisions in connection with shop opening hours. If such federal provisions were adopted, a blocking effect pursuant to Art. 72 sec. 1 GG would apply, resulting in the nullity of the already adopted Land law.

2. The provision in § 12 sec. 3 sentences 1 and 2 ThürLadÖffG is compatible with the Basic Law under substantive review. It interferes with the complainant’s freedom of practicing an occupation protected under Art. 12 sec. 1 GG by limiting the desired engagement of its employees in its retail shops on Saturdays. However, this interference is constitutionally justified.

a) The act is intended to ensure occupational health and safety and to protect compatibility of employment and family, which are common good interests that justify restrictions of the freedom of practicing an occupation. With this act, the legislature intends to react to the deterioration of working conditions for employees in the retail sector that result from the extension of the shop opening hours and may have a negative impact on health and family life.  

b) The provision is proportional and, in particular, it is reasonable. § 12 sec. 3 sentences 1 und 2 ThürLadÖffG restrict the freedom of practicing an occupation only minimally. The provision does not prevent the affected enterprises from opening their shops on Saturdays, the day with high sales. It does however force the enterprises to reorganize their personnel. This might result in additional costs as well as in sales losses if experienced and qualified staff is not fully available on all highly-frequented Saturdays. However, the legislature is permitted to give more weight to the interests of employee protection. It may be that the challenged provision does not only have the desired positive effects on the compatibility of family and employment, but that it also has negative effects since it might be a hindrance to flexibly sharing care responsibilities. In the case at hand, the legislature does however not exceed its legislative margin of appreciation by issuing limited provisions on weekend working time in the retail sector.

Separate Opinion by Justice Paulus:

The order is neither compatible with the separation of powers between the Federation and the Laender in the Basic Law nor with the past case-law of both Senates.

1. In accordance with Art. 72 sec. 1 GG, the Federation has made exhaustive use of its competence from Art. 74 sec. 1 no. 12 GG for regulating working hours. In § 17 sec. 4 LadSchlG, it has granted employees of the retail sector the right to request one work-free Saturday per month. The wording of the regulation, which contains a special legal provision for Saturday as a working day, is exhaustive. There is no indication that the Federation intended to reserve a right for the Laender to regulate this matter. The regulation was adopted in the year 2003 upon proposal of the Bundestag Committee for Economy and Labour and was intended to grant employees of the retail sector “at least“ one work-free Saturday per month. The term “at least“ was however not intended to give legal discretion to the Laender, but rather to leave space for collective bargaining. In the committee’s consultations, one of the then-majority parliamentary groups stressed the lack of a legislative competence on the part of the Laender, and the other emphasised the provision´s character as (exhaustively) balancing the interests between employers and employees.

The subsequent amendment of the Basic Law can hardly retroactively turn an exhaustive exercise of the federal competence into a non-exhaustive one. In accordance with the past decisions of the Second Senate, this would require a specific amendment of the law by inserting a deviation clause in order to comply with the constitutional principle of legal clarity in the matter of competencies.

2. Moreover, by replacing the subjective right to one work-free Saturday per month with an absolute prohibition of working on two Saturdays, the act deviates from the federal regulation without the explicit competence to do so e contrario required by Art. 72 sec. 3 GG. Accordingly, the Laender legislation may not deviate from federal legislation if not explicitly entitled to do so by a constitutional grant of competence. Art. 72 sec. 3 GG does not provide for such waiver in labour matters.

3. In view of the violation of the legislative competences under the Basic Law, it may in the end remain open whether the paternalistic Land provision constitutes a substantive violation of fundamental rights. The balancing of fundamental rights is, however, incomplete because, with regard to the freedom of practicing an occupation under Art. 12 sec. 1 GG, it fails to reflect the change from the individual right provided by federal legislation to the absolute prohibition of work on two Saturdays in the Land Act in question. This prohibition considerably lowers the weight the legislature can accord to labour rights to counterbalance the restriction to the complainant’s freedom of practicing an occupation. For instance, it is not necessarily in the best interest of a large number of employees not to be allowed to work on two Saturdays per month. Many families do not have the option of external child care so that the parents have to coordinate who takes care of the children if they depend upon a double income. Others may prefer to have a work-free Monday instead of a work-free Saturday.