Is the Sunday shopping ban in line with the Constitution of the Republic of Slovenia?

Quite a few legal experts are of the opinion that the ban could be constitutionally contentious from the point of prejudice to the constitutional principle of equality before the law (Article 14 of the Constitution of the Republic of Slovenia). The current legislation, despite the general ban, allows some traders to open on Sundays and non-working days (gas stations, shops at border crossings, airports, railway and bus stations, and hospitals). For example, the law does allow florists at cemeteries or smaller stores at tourist spots to trade on Sundays, i.e. where certain traders can make plenty, if not most of their turnover on Sundays and / or non-working days – similar to e.g. caterers. It is however possible to buy, for example at a gas station, a large assortment of products (food products, hygiene products, even cut flowers, fruits and vegetables) that are also sold in other regular stores, but the latter are not allowed to open on Sundays and non-working days. It is these inequalities in the treatment of different competing entities that critics of the Act point out.

The legislator may restrict certain forms of entrepreneurship, if the restriction is in the public interest, regardless of the guaranteed free economic initiative (the right to free enterprise, Article 74 of the Constitution of the Republic of Slovenia). A restriction of this kind may be constitutionally permissible if the legislator abided by the general constitutional principle of proportionality. In restricting the constitutional right to enterprise, it is therefore necessary to weigh between the public interest and the prejudice to the right to enterprise.

In the past, the Constitutional Court, in decision U-II-2 / 03-07 of 15 May 2003, ruled that the legislator is also required to take account of the interests of consumers when determining opening hours. Therefore, the interest of a consumer who visits a grave on a Sunday or the 1st of November and would like to buy candles or flowers is also important. The wording of the Act does not suggest that the legislator has considered such interests at all.

Since the intention of the legislator was to protect employees in stores, it is necessary to ask whether that the ban really achieved. The current legislation bans shopping on Sundays and non-working days, but does not ban traders on delegating other work tasks to employees on these days. A trader (e.g. a shop larger than 200 square meters or a florist in a cemetery) could still, in principle, order employees to work on Sundays or non-working days (e.g. stock-taking, stacking goods, labelling goods, etc.). The sale may not physically take place in the store, but it can be completed online or the trader can make employees perform other work that does not constitute direct sales – employees in the store may therefore still have to work on Sundays despite the ban. This also raises the question of why employees in shops are treated differently to e.g. catering employees working on Sundays and non-working days.

The constitutionality of the current measure is sure to be ruled on in the near future as it is hard to see affected traders standing idly by and not filing for constitutional review.