In most cases, they are a main attraction in their own right.
Municipalities and cities use ordinances to authorize Sunday openings in order to create a greater incentive to participate in such festivals. In doing so, the principle of Sunday rest and employee protection collide with the commercial interests of vendors on the one hand and the shopping interests of customers on the other.
Sunday rest enshrined in the constitution
Although already recognized as a matter of course in other countries, Sunday opening is still considered a "sacred cow" in Germany. This is not least due to the fact that Sunday rest can look back on a long constitutional tradition. Article 139 of the Weimar Constitution from 1919 already states: "Sunday and the state-recognized public holidays remain legally protected as days of rest and spiritual upliftment". Article 139 of the Weimar Constitution still applies today via Article 140 of the Basic Law. This means that Sundays and public holidays are protected by the constitution. This strict approach is increasingly no longer appropriate for today's working reality. One in four employees now works at least part of the day on Sundays. In addition, the religious significance of the day has declined for a large part of the population; only the day's resting function with the "crime scene" at 8:15 p.m. as a successful end to the week has remained.
Requirements for Sunday opening
Case law in North Rhine-Westphalia(OVG NRW, decision of 10.6.2016 - 4 B 504/16; OVG NRW, decision of 15.8.2016 - 4 B 887/16) and Bavaria(BayVGH, decision of 18.5.2016 - 22 N 15.1526) has, in a number of recent decisions concerning Sunday opening on the occasion of smaller community festivals, set out a number of non-exhaustive criteria according to which Sunday opening may be permitted by statutory order in exceptional cases:
- It must be an event with a considerable influx of visitors.
- In all the circumstances, the store opening must only appear to be an appendage to the event and not the main attraction.
- The influx of visitors to the event must be greater than to the store opening.
- The store opening must be limited to the area surrounding the event.
The smaller district and local festivals held by municipalities and towns regularly do not meet these requirements. As a rule, the festivals themselves attract only a few visitors, but the stores that are open attract many more. This makes the opening of stores the main attraction and not merely an appendage to the festival. Furthermore, Sunday openings often cover entire districts, although the festivals only take place in individual squares. In this case, there is no spatial connection between the open stores and the event.
Special features for spa, recreation and tourism resorts in Schleswig-Holstein
In Schleswig-Holstein, municipalities and cities can enforce the opening of stores on Sundays more frequently than in other federal states: Due to the state's spa ordinance from 2013, stores in spa, recreation and tourism resorts are generally allowed to be open on Sundays if they offer goods for daily consumption or tourist needs.
Dr. Fiete Kalscheuer