Within this legal circular, we summarise a recently published decision of the Supreme Administrative Court of the Czech Republic (hereinafter “SAC”), which concerns the prohibition of sales during state and other holidays. This prohibition, stemming from Act No. 223/2016 Coll., on Trading Hours in Retail and Wholesale, as amended (hereinafter the “Trading Hours Act”), applies only to certain shops. Generally, the prohibition is directed primarily against brick-and-mortar shops (provozovny), whose sales area is greater than 200 m², but does not apply, for example, to pharmacies or petrol stations. We addressed the regulation itself in more detail in legal circular No. 10/2016, where we could only note that the Trading Hours Act does not expressly address internet sales in any way, and the legal status of internet shops may thus not be entirely clear.

In the case under consideration, a CTI inspector (Česká obchodní inspekce) carried out an inspection of a brick-and-mortar shop with a sales area greater than 200 m², which was open on a state holiday and, in his opinion, none of the statutory exceptions applied to it. The inspector first attempted to purchase goods in the standard manner. However, an employee of the shop informed him that it was a state holiday and that he therefore could not sell him the goods. Nevertheless, he referred him to ordering through the shop’s e-shop using a computer located directly in the brick-and-mortar shop. The inspector ordered goods via this computer, which he subsequently paid for in cash directly in the brick-and-mortar shop. After the CTI inspector collected the purchased goods, he identified himself and informed the seller of the commission of an administrative offence (přestupek).

The seller filed a complaint against this violation with the CTI, and after its unsuccessful consideration, lodged an action with the competent Regional Court. The Regional Court ruled in favour of the CTI, and the seller therefore filed a remedy against the Regional Court’s decision with the SAC. The SAC thus assessed whether the seller’s conduct consisting of enabling the ordering of goods in the seller’s e-shop using a computer and the issuance and payment of goods so ordered at the seller’s shop, which was carried out on a state holiday, constituted a prohibited sale within the meaning of the Trading Hours Act.

From a legal perspective, the crucial issue was the assessment of the concept of “sale”. The Trading Hours Act does not define the concept of sale, and therefore the SAC proceeded to interpret it. The SAC concluded that the concept of sale corresponds to the concept of purchase as defined by the Civil Code. Sale, respectively purchase, thus consists of the following steps – conclusion of a contract of sale, delivery of the thing by the seller to the buyer, enabling the acquisition of ownership of the subject of purchase by the buyer, collection of the thing by the buyer, and payment of the purchase price by the buyer. The SAC considered the conclusion of the contract of sale to be the most important stage.

Given that the contract of sale in question was concluded at a distance (through the seller’s e-shop), the most important part of the sale, in the SAC’s view, took place outside the seller’s brick-and-mortar shop, and thus it was not a sale within the meaning of the Trading Hours Act. The shop thus served only as a place for the issuance of goods purchased via the internet. The issuance of goods itself represents, according to the SAC, only one of the stages of sale, and not the decisive one. The mere issuance of goods can then, according to the SAC, be likened to the services of classic parcel delivery services (the method of collecting goods can commonly be chosen in internet shops), and the SAC stated that these undoubtedly do not fall under the Trading Hours Act. Although these conclusions of the court are certainly favourable for internet traders, it must be stated that the text of the Trading Hours Act prohibits any sale on the stated holidays (regardless of how such sale is carried out).

It can thus be concluded that the SAC arrived at the interpretation that traders who, on state and other holidays, offer the sale of goods only through an e-shop, with the shop thus functioning only as a “collection point”, do not violate the Trading Hours Act by this conduct.

Jiří Moravec

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 10/2021 intended for members of this association.

This text was translated from Czech to English using an AI translator.