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Federal Court of Justice decision on sales on Sundays and public holidays
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The Federal Court of Justice (BGH) addressed the question of whether Christmas tree decorations may be offered on Sundays and public holidays in connection with the operation of a retail outlet for flowers and plants. At the core, the issue concerned the scope of a statutory exception to the general prohibition of Sunday opening and which goods are covered by that privilege.
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Starting point: Principle of Sunday and public holiday protection and statutory exceptions
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Prohibition of shop opening as the general rule
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Shop-closing law generally provides that retail outlets must be kept closed on Sundays and public holidays. Exceptions are permissible only to the extent that they are expressly provided for by statutory regulations.
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Exception for certain groups of goods
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Privileges exist for certain retail outlets and assortments. This includes, in particular, the sale of flowers and plants on Sundays and public holidays under certain conditions. The decisive dispute was whether, and to what extent, additionally offered items—here, Christmas tree decorations—can also be covered by this exception.
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Point in dispute: Do Christmas tree decorations belong to the privileged assortment?
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Occasion for the dispute
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The subject of the proceedings was an objection under unfair competition law to Sunday sales in which, alongside flowers and plants, Christmas tree decorations were also offered. The allegation was that the opening and/or the sale was no longer covered by the relevant exception provision as soon as the offer went beyond the privileged goods.
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Distinction between core assortment and supplementary offer
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The BGH had to clarify the criteria by which it is to be determined whether an additional item can still be regarded as an assortment-related supplement or whether it expands the character of the privileged offer in a manner that circumvents the protective purpose of shop-closing law. This depended on the substantive connection of the goods with the permitted core assortment.
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Key statements of the decision
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Permissibility of Sunday sales of Christmas tree decorations in the specific context
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In the case at issue, the BGH considered the sale of Christmas tree decorations on Sundays and public holidays to be permissible insofar as it takes place within the framework of a retail outlet privileged under shop-closing law and the connection with the flower and plant assortment is maintained. Decisive was the classification of the Christmas tree decorations as a seasonally shaped, thematically closely related add-on in the environment of the permitted assortment.
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No blanket authorization beyond the individual case
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The decision is tied to the statutory requirements of the respective exception provision. The BGH did not treat the permissible expansion of the assortment as unlimited, but linked it to the functional connection with the privileged sale. Whether these requirements are met must be assessed on the basis of the specific design of the offer and the sales operation.
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Significance for competition
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Relevance under unfair competition law
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Violations of rules on Sunday opening can also be relevant under unfair competition law if competitors are adversely affected by disregarded rules governing market conduct. The decision makes clear that the assessment is not based solely on the question “open on Sunday—yes or no,” but on the scope of the statutory privilege and the specific allocation of goods.
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Classification of the assortment as a legal assessment standard
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The focus is therefore on the legal assessment of whether an offer still qualifies as a permissible supplement to the privileged core assortment or whether it is shifted toward a general retail offering. This delineation has a direct impact on the assessment under unfair competition law.
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Transition: Need for clarification in questions of permissible Sunday opening
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Companies that sell on Sundays and public holidays as part of seasonal assortments are often confronted with delimitation issues between a permissible core assortment and supplementary goods, as well as with corresponding risks under unfair competition law. If legal questions arise in this regard, an external classification in the context of legal advice in competition law by MTR Legal attorneys may be considered.
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