The provisions of the Act of January 10, 2018, on the restriction of trade on Sundays and holidays and on certain other days (in Polish: ustawa z dnia 10 stycznia 2018 r. o ograniczeniu handlu w niedziele i święta oraz w niektóre inne dni)[1] caused a stir when they were published as a legislative proposal by the NSZZ “Solidarność”—which happend even before the legislative process was formally initiated. Despite being in force for several years, the discussion about their validity, the ratio of generated costs to profits, and possible reasons for freeing trade in connection with the economic crisis will most likely return soon.[2] It becomes more patent when we take into account both the announcements made during the election campaign by the Civic Coalition (Koalicja Obywatelska), as well as the previous expert activity of the new Minister of Finance, who in a recent report of Instytut Obywatelski on thesocio-economic effects of Sunday trading ban regulation[3] criticized the current solution, proposing instead:
– the restoration of Sunday trade
– ensuring employees have the right to at least two Sundays off a month
-Strengthening the State Labor Inspection (Państwowa Inspekcja Pracy) to ensure compliance with employee rights

Regardless of possible legislative changes awaiting us in this matter, the current law is being applied and is a source of some interesting court decisions. Recently, the media reported on the judgment of the Supreme Court of September 13, 2023 (reference no. III KK 15/23), in which the court considered the liability of the president of the company’s management board who entrusted employees with performing activities in the company’s stores on Sundays, despite the Sunday trade ban. During the ongoing proceedings, it became clear that the subject of the company’s activities included ones such as retail sale of alcoholic and non-alcoholic beverages in specialized stores and wholesale of alcoholic beverages. The retail sales were conducted in non-specialized stores with a predominance of food, beverages, and tobacco products, but they took place in a dozen or so stores where the entrepreneur placed shelves with recreational equipment for rent.

What was in question was whether allowing customers to use such services (rental of sports equipment) in a liquor store exempts the entrepreneur from the ban on trading on Sundays, i.e. acting within the statutory exception provided in Art. 6 section 1 point 10 of the Act: “The prohibition referred to in Article 5 does not apply: in commercial establishments, in establishments conducting activities in the field of culture, sports, education, tourism and recreation.“

The Supreme Court was not convinced by such an interpretation, correctly assuming that: “an establishment conducting activities in the field of culture, sports, education, tourism, and recreation can be said to exist when a set of separate material objects the enterprise is related to cultural, sports, educational, tourist or recreational activities. It cannot be claimed that conducting sports activities by placing specific equipment in a commercial establishment makes it an “establishment conducting sports activities” (justification of the judgment of the Supreme Court of September 13, 2023, reference no. III KK 155/23, p. 9). The Supreme Court also reminded that exceptions to the prohibition should be – as the standard of legal interpretation would suggest –understood strictly and should not be extended through an overly creative interpretation, and even more so through the sophisticated practices of employers trying to circumvent a clear legal norm.

Regardless of the controversies surrounding the Sunday trade ban, the allegations made by critics of the regulation, and the de lege ferenda proposals, the Supreme Court’s decision deserves approval. If precise statutory provisions are in force, they should be applied, even if they cause misunderstanding, opposition, or limit the possibility of conducting business activity.

Eventually, allowing their violation by recognizing a liquor store as an establishment conducting cultural, sports, or educational activities would for sure not contribute to building the authority of the judiciary and the authority of the legal order.

[1] Dz.U. z 2023 r. item. 158.

[2]See also my opinion on this topic in the form of a scientific article from a few years ago: K. Koźmiński, „Ograniczenie handlu w niedziele – przewidywanie skutków regulacji czy wróżenie z fusów?” (Restricting trade on Sundays – predicting the effects of regulations or telling fortunes from tea leaves?), “Studia Iuridica “, LXXVIII/2018, pp. 212-231.

[3]A. Domański, Zakaz handlu w niedziele – społeczne i gospodarcze skutki regulacji (Sunday trading ban – social and economic effects of regulation), Instytut Obywatelski, https://instytutobywatelski.pl/raporty/194-zakaz-handlu-w-niedziele-spoleczne-i-economic-skutki-regulacji, access from: 14 December 2023.