The Federal Constitutional Court carefully selects the sources, and back then, in December 2009, it drew on a particularly successful polemic from the Catechism of the Catholic Church. Sunday, it said, was a day of protest against the “slave to work” and the “idolatry of money”. That fit in well with the Karlsruhe judgment, because the court had set out to save Sunday as a general day of rest, and by no means only for going to church. But in the service of health, family, leisure time together.
Protecting Sunday not only for religious reasons was actually a smart move, because the churches are weak and the day of rest needed additional legitimation. However, the dispute over Sunday did not end there. Each federal state has its own rules as to when and where it is allowed to open.
In front of the Federal Court of Justice this Wednesday, for example, it is about a fashion outlet. Because it is located near the Zweibrücken airfield, according to an ordinance, it may also open on Sundays during holiday periods when there is a lot of flying. The problem: There is no real airfield in Zweibrücken anymore, as commercial scheduled services were discontinued in 2014; Cargo and business flights in particular remained. The paragraphs on the Sunday opening are, if you will, hanging in the air. Therefore, a competitor wants to sue for the closure of the outlet.
People are not only consumers but also employees
The search for loopholes is also widespread, and there are municipal festivals, a trade fair or a Sunday market. The courts call it “occasion-related Sunday openings.” Marcel Schäuble from the Verdi service union has observed that the local authorities often act in unison with the retail trade: “You are very creative in the cities.” There are then three junk stands next to the shopping center or a bouncy castle in the commercial area to justify the nationwide Sunday sale.
The Federal Administrative Court has long drawn boundaries here. First, it must be clear that the festival is the attraction – and not the alibi for retail. And secondly, the opening of the shops remains spatially limited. The municipality of Herrieden (“Active City on the Altmühl”) recently reported that the Administrative Court had partially prohibited the planned Sunday sale on the occasion of the spring market. Some shops were simply too far away from the market stalls for the court.
A Berlin organic market tried out another trick a few years ago. He set up two free e-charging stations – and claimed that he was now a gas station that was allowed to open on Sundays. That was too transparent for the administrative court in Berlin; the charging station is only a “subordinate ancillary service” to the supermarket. The shop was closed on Sundays.
But isn’t the legal defense of Sunday at the expense of customers who would like to shop on Sunday? Marcel Schäuble warns that people are not only consumers, but also employees. And when the retail trade opens on Sundays, wholesalers and service providers will have to follow suit at some point. Then Sunday shopping won’t work – because you have to work yourself.