Constitutional Court overturns ban on retail trade on Sunday as unconstitutional

The Constitutional Court of Montenegro has abolished the Sunday trading ban as unconstitutional, a decision adopted at today’s session.

As specified, Article 35a of the Law on Internal Trade was repealed as unconstitutional.

- The Court assessed that the aforementioned provision violates the freedom of entrepreneurship guaranteed by the Constitution, as well as the constitutional principle of equality before the law, since one group of entrepreneurs/traders was allowed to carry out business activities on Sundays and on state and other public holidays, while another group was prohibited from doing so - the statement said.

The Constitution precisely defines the grounds on which the freedom of entrepreneurship may be restricted (for the protection of human health, the environment, natural resources, cultural heritage, or the security and defense of Montenegro), and the legislator may not independently introduce new restrictions beyond these constitutional grounds, nor without a clearly established legitimate aim in the public interest.

- By allowing one group of entrepreneurs (pharmacies, confectioneries, bakeries, newspaper kiosks, souvenir shops, flower shops, stores selling funeral equipment, plant protection products, petrol stations, markets, etc.) to operate, while prohibiting another, the legislator placed one group of economic actors in an unequal position compared to another - the statement emphasized.

Such a ban, the Court found, lacks objective and reasonable justification from the perspective of the constitutional obligation of the state to ensure equal market conditions for all entrepreneurs.

- Additionally, by banning work on Sundays and on state and other public holidays only for certain traders, there was a restriction of human rights and freedoms and a violation of the constitutional principle of consistency of legal regulations. Any restriction of human rights and freedoms must remain within the limits of the Constitution, serve a legitimate aim in the public interest, and ensure proportionality between the means used and the objective pursued - the statement said.

In the constitutional review proceedings, the Constitutional Court determined that during the adoption of the repealed provision no objective was stated for its enactment, nor was it explained why it was considered necessary and justified to ban wholesale and retail trade on Sundays and on state and other public holidays, including the exemptions from that ban.

- The Constitutional Court does not interfere with the right of the legislator to regulate wholesale and retail trade on Sundays in a different manner, provided that appropriate fundamental constitutional values, or protected constitutional interests, as indicated by the Constitutional Court in this decision, are respected. The ban on Sunday trading and trading on state and other public holidays shall remain in force until the publication of the Constitutional Court’s decision in the Official Gazette of Montenegro, of which the Court will timely inform the public - the statement concluded.