The Constitutional Court of Montenegro has submitted to the Official Gazette a decision to repeal Article 35a of the Law on Internal Trade, which prohibited the operation of shops on Sundays and on public and other holidays, the Constitutional Court announced today.
"At its session held on January 28, the Constitutional Court repealed Article 35a of the Law on Internal Trade as unconstitutional, because it violates the freedom of entrepreneurship guaranteed by the Constitution, as well as the constitutional principle of equality of all before the law, because one group of entrepreneurs/traders is allowed to carry out their activities on Sundays and on public and other holidays, while another group is prohibited from doing so. The decision states that the Constitution guarantees the right of employees to limited working hours and paid leave, but does not prescribe the right to rest exclusively on Sundays. Montenegro is a signatory to the Convention on Weekly Rest in Trade and Offices, which provides for the right to one day off during the week and that whenever possible, it should be a day that coincides with a day of the week, which, whenever possible, should coincide with a traditional day of rest, but does not necessarily have to be a Sunday, if the nature of the work or provision of services makes this impossible," the statement states.
The Constitutional Court added that the Labor Law also guarantees employees one day of weekly rest, which can be used on Sunday or another day of the week, depending on the nature of the work, with the obligation of the employer and the state to ensure the use and respect of that right.
"By allowing one group of entrepreneurs to work and another not to work, the legislator indicates that the Parliament of Montenegro recognizes the fact that there is a need for continuous and daily work of a certain number of entities in order to supply consumers. However, by establishing exceptions without explaining why it made a difference between entrepreneurs, the legislator has not achieved a constitutionally acceptable balance between the rights of entrepreneurs who are allowed to work on Sundays and the rights of those who are prohibited from doing so, to the extent that the objection about the appearance of inequality of the second group of entities in relation to the first can be removed without any doubt," the statement reads.
The Constitutional Court said that the Constitution precisely prescribes the reasons for which freedom of entrepreneurship may be restricted (for the purpose of protecting human health, the environment, natural resources, cultural heritage or the security and defense of Montenegro), and that the legislator cannot independently prescribe new restrictions outside of these constitutional grounds, nor without a clearly established legitimate goal in the public interest.
"By allowing one group of entrepreneurs (pharmacies, pastry shops, bakeries, newsstands, souvenir shops, florists, funeral equipment stores, plant protection stores, gas stations and retail stores within gas stations, markets, etc.) to operate, and not another, the legislator has placed one group of entrepreneurs in an unequal position compared to another. Such a ban has no objective and reasonable justification, from the aspect of the constitutional obligation of the state to provide all entrepreneurs with an equal position in the market," the Constitutional Court said.
The institution states that in the constitutional court proceedings they determined that the procedure for adopting the repealed provision did not state the purpose for its adoption, that is, why it is considered necessary and justified to prohibit the operation of wholesale and retail stores on Sundays and on public and other holidays, as well as the exceptions to that prohibition.
"The Constitutional Court does not affect the legislator's right to regulate the conduct of wholesale and retail trade on Sundays in a different manner, but with due regard for the corresponding basic constitutional values, i.e. protected constitutional goods, which the Constitutional Court pointed out in its decision," the Constitutional Court said.
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