A Bavarian bakery chain is allowed to sell its bread even on Sundays and public holidays all day - this is true in the branches where the counter sales is combined with a café. This was decided by the Federal Court of Justice (BGH) and thus confirmed a judgment of the lower court.
The chain had sold in its branches with integrated Café Sundays longer than the prescribed in Bavaria three hours bread rolls and bread. On the other hand, the center had sued for the fight against unfair competition. According to BGH, however, the chain does not have to keep up with these sales hours because there are also tables and chairs in the shops. Therefore, they are considered a restaurant. The restaurant law is similar in the point in all federal states, therefore the verdict applies nationwide.
The bakery had claimed that for "prepared food" a derogation from the store closing law. The central question in the process was therefore, if unoccupied rolls and breads are considered "prepared meals".
Bakery, café or mixed operation?
According to the Federal shop-opening law - which applies in Bavaria because the Free State does not have its own state law - bakeries are allowed to sell bread rolls and pretzels for a maximum of three hours on Sundays. If they also run a café, they fall under the restaurant law and may sell "prepared food" for longer.
The Higher Regional Court of Munich had previously rejected the complaint of the Wettbewerbszentrale against the bakery. The Higher Regional Court rated the branches because of the available seating as a mixed operation of retail store and café operation. The sales over a period of more than three hours are therefore permitted by a derogation in the Restaurant Act. This regulation provides that "prepared meals" can be sold for "immediate consumption". Bread rolls and bread would have to be baked and were thus "ready to eat", decided the Higher Regional Court.
Attorney of the Wettbewerbszentrale fears "unlimited" Sunday sales
The hearing also focused on the question of what exactly is meant by "prepared food" and where to draw the line. The attorney of the Wettbewerbszentrale, Christian Rohnke, was in favor of orienting himself to what would typically be offered in a restaurant. "Maybe there's a slice of bread to the soup, but the essence is the soup," said Rohnke. Otherwise there is a risk that the supply of food in Sunday sales would be "boundless".
The lawyer of the bakery, Peter Wassermann, was convinced, however, that even unoccupied bread rolls and whole loaves were "prepared meals" within the meaning of the law because they had previously been made from different ingredients. "The bread roll is ready to eat as such," Wassermann said. It does not matter if it is already occupied.
Reference number: I ZR 44/19
