Constitutional Court 14.12.2023, E 1604/2022
There are repeated debates in Austria about longer opening hours. Behind this lie strict legal regulations that regulate opening hours and affect the everyday lives of many people. At the same time, self-service machines that are accessible around the clock are booming and offer a convenient alternative for the needs of modern society. The only question is what applies to these self-service machines; the Constitutional Court (VfGH) has now dealt with this.
The Opening Hours Act generally applies to “all permanent and temporary establishments intended for the retail sale of goods (shops and other sales outlets) of companies that are subject to the Trade Regulation Act 1994However, according to § 2 Z 1 Opening Hours Act, the “Dispensing of goods from vending machines“ is excluded from this. In this context, the Constitutional Court had to deal with a criminal decision by the BH Spittal an der Drau. The complainant is the commercial and industrial managing director of a GmbH and operates so-called “field boxes”, which are self-service containers that are not firmly attached to the ground. Agricultural products produced by the complainant himself and by other farmers are offered. In the containers, you can shop and pay for things yourself without the help of staff.
In the penal decision, the complainant was accused of an offence under Section 3 and Section 11 of the Opening Hours Act in conjunction with Section 368 of the Trade Regulations Act 1994, because two of his so-called “Field boxes“ were also open on Saturdays and Sundays at specified times. The Carinthian State Administrative Court dismissed the appeal against the criminal decision as unfounded. The complainant then objected to the violation of the rights of all citizens to equality before the law (Article 7 paragraph 1 B-VG, Article 2 StGG) and the freedom to pursue a trade (Article 6 StGG) and filed an appeal based on Article 144 B-VG. In his appeal, he also requested that Section 1 of the Opening Hours Act be examined and that the contested decision be annulled at his own expense, and that the appeal be transferred to the Administrative Court if necessary. The Constitutional Court found that the appeal was admissible but unfounded. It did not constitute a serious infringement of the constitutionally guaranteed right to freedom of employment because the general objectives that shop closing and opening hours regulations serve, namely the protection of consumer interests, the objective of competition law and the socio-political function, are in the public interest. The legislator has not exceeded its legal policy scope in accordance with the principle of equality. Furthermore, an impossible application of the Opening Hours Act is not apparent. With appropriate justification that under "Goods dispensing from vending machines“ only goods dispensing facilities such as cigarette or chewing gum machines are included – and not the so-called “field boxes” – the applicability of the exception provision in Section 2 Z 1 Opening Hours Act could – at least conceivably – be denied.
The Constitutional Court has made it clear that there has been no violation of constitutionally guaranteed rights. The Administrative Court must now decide on the correct application of the law.
21.12.2023