On January 20, a new Constitutional Court Judgment (CCJ) on the legal regulations on business hours was published in the State Official Gazette. This judgment is one more of the numerous pronouncements passed by the Court on this matter since 2012, when the Government amended the basic state law to introduce greater liberalization in business hours.

On this occasion, the CCJ 211/2016, dated December 15, declares as unconstitutional and void several articles of the Catalan Law 8/2004, dated December 23, on business hours, as those are worded by the Decree Law 4/2012 of October 30, on measures relating to business hours and certain promotional activities.

The Constitutional Court considers that the Catalan Law violates, in particular, the following aspects of the basic state legislation on this matter, that is, Law 1/2004, of December 21, on business hours (hereinafter referred to as "LBH"):

First

On the one hand, the challenged Catalan law established that the maximum number of hours in which commercial establishments could remain open a day was 12. In addition, it prohibited to open commercial establishments between 10 pm and 7 am, and the closing time on December 24 and 31, was compulsorily advanced at 20:00.

All previous provisions are declared unconstitutional and void because they introduce limitations in the specific number of daily hours during which commercial establishments can remain open, as well as in their distribution throughout the day, limitations that contradict the basic legislation.

Accordingly, under the basic principle of freedom of decision of each trader (Article 3.2 LBH), and provided that the weekly limit of opening hours established by each autonomous community[1] is not exceeded, each business owner should be able to freely decide the opening and closing times of their establishments, as well as the particular distribution, during the working days (Monday to Saturday), of the total weekly hours authorized in their autonomous community.

Second

On the other hand, the other aspect relating to business hours mentioned by the CCJ 211/2016 is the precept of the Catalan law that prohibited the Catalan Government or the municipalities from determining as one of the 10 authorized holidays, the days 25 and 26 December, as well as Palm Sunday and Easter Monday.

This prohibition is also declared unconstitutional and void, since, by prohibiting in an inviolable way the opening during two consecutive holidays, the criteria established by the LBH is contradicted.

The problem

The legal problem posed by the practical application of this new judgement is that it has been pronounced on a law that is not currently in force, since three years ago the Catalan Parliament approved a new law on business hours (Law 3 / 2014, of February19), which repealed and replaced the previous Law 8/2004.

However, the new Catalan law on business hours reproduces, in a practically identical way, the previous legal regulations, so that the current law still provides the same precepts than those that have been declared unconstitutional in the repealed law.

In spite of the above, and as unusual as it may seem, not all the articles that were challenged by the Government in the previous law have been challenged again in the current law, so the CCJ that will be pronounced on the appeal on the grounds of unconstitutionality which is still pending could not annul some precepts identical to those that have just been annulled in the analyzed judgement.

However, and without prejudice to the foregoing paragraphs, we consider that there are different legal channels that could lead to a real effectiveness of the recent CCJ, and to achieve therefore more liberalized business hours’ regulations in Catalonia, in line with the basic legal framework established by the state law on business hours.

In any case, before making any final evaluation, do not hesitate to contact our experts for an in-depth analysis of your case.