The Constitutional Court submitted the decision abolishing the ban on retail trade on Sunday to the Official Gazette
The Constitutional Court of Montenegro has submitted to the Official Gazette its decision abolishing Article 35a of the Law on Internal Trade, which prescribed a ban on trading activities on Sundays and on state and other public holidays, the Court announced.
At a session held on 28 January, the Constitutional Court repealed Article 35a of the Law on Internal Trade as unconstitutional, finding that it violated the freedom of entrepreneurship guaranteed by the Constitution, as well as the constitutional principle of equality before the law. This was because one group of entrepreneurs/traders was allowed to operate on Sundays and public holidays, while another group was prohibited from doing so.
The decision states that the Constitution guarantees employees the right to limited working hours and paid leave, but does not prescribe a right to rest exclusively on Sundays. Montenegro is a signatory to the Convention concerning Weekly Rest in Commerce and Offices, which provides for the right to one day of rest per week and stipulates that, whenever possible, this should coincide with the same day of the week, traditionally the day of rest. However, it does not necessarily have to be Sunday if the nature of the work or the provision of services makes this impossible.
The Constitutional Court also recalled that the Labour Law guarantees employees one day of weekly rest, to be taken on Sunday or another day of the week, depending on the nature of the work, with an obligation on both the employer and the state to ensure the exercise and respect of that right.
- By allowing one group of entrepreneurs to operate while prohibiting another from doing so, the legislator acknowledges that there is a need for continuous, everyday operation of a certain number of entities in order to supply consumers. However, by establishing exceptions without explaining why distinctions were made among entrepreneurs, the legislator failed to achieve a constitutionally acceptable balance between the rights of entrepreneurs permitted to operate on Sundays and those who are prohibited, to such an extent that any doubt regarding the unequal treatment of the latter group in relation to the former could be eliminated - the Constitutional Court’s statement said.
The Court emphasized that 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 that the legislator may not independently introduce new restrictions outside 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, florists, shops selling funeral equipment, plant protection products, petrol stations and retail outlets within petrol stations, markets, etc.) to operate while prohibiting others, the legislator placed one group of economic operators in an unequal position compared to another. Such a ban has no objective and reasonable justification, from the perspective of the constitutional obligation of the state to ensure equal market conditions for all entrepreneurs - the statement added.
In the constitutional review proceedings, the Constitutional Court found 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 prohibit wholesale and retail trade on Sundays and public holidays, as well as to introduce exceptions to that ban.
- The Constitutional Court does not interfere with the legislator’s right to regulate wholesale and retail trade on Sundays in a different manner, but only with due regard for the relevant fundamental constitutional values and protected constitutional interests to which the Constitutional Court pointed in its decision - the statement concluded.