Prohibition on employing workers on Sundays in a low-traffic station shop

Facts

In February 2023, company A. AG (hereinafter referred to as the Company) opened a new shop at Châtel-St-Denis station, open every day, including Sundays, from 8:00 to 20:00. The company managing the station (hereinafter referred to as the Fribourg public transport company) considered that this shop was an ancillary commercial enterprise within the meaning of the federal Railways Act (RailA) and was therefore not subject to cantonal and municipal provisions on shop opening hours, including on Sundays.

By decision of 2 March 2023, the Fribourg cantonal labour inspectorate prohibited the Company from employing workers from Saturday 23:00 to Sunday 23:00. The Fribourg cantonal employment service (hereinafter referred to as the Cantonal Service) dismissed the Company’s appeal. The Company appealed to the Fribourg cantonal court, which dismissed its appeal by judgment of 21 December 2023. The Company then filed a public law appeal with the Federal Supreme Court, which dismissed the appeal.

Considerations

The Federal Supreme Court examined the relationship between Art. 39 RailA, which allows railway companies to set up ancillary enterprises in stations, and Art. 26(2) and (4) EmpO 2, which permits service enterprises for passengers to employ workers on Sundays without prior authorisation. The Court emphasised that the authorisation granted by the Fribourg public transport company under Art. 39 RailA is not in itself sufficient to permit employment on Sundays. In addition, the criteria set out in Art. 26(2) and (4) EmpO 2 must be met, in particular that the enterprise is located in a station with high passenger traffic.

The Federal Supreme Court interpreted the provisions of Art. 39 RailA and Art. 26(2) and (4) EmpO 2 in a coordinated manner. It recalled that exemptions from the prohibition on Sunday work must be interpreted restrictively, in accordance with consistent case law. Art. 26(4) EmpO 2 applies only to points of sale and service enterprises located in stations, airports or other major public transport hubs with sufficient passenger traffic. This interpretation is confirmed by the preparatory works and previous case law.

The Court rejected the Company’s argument that Art. 26(4) EmpO 2 would apply to any station, regardless of its size or traffic. It emphasised that the term “other major public transport hubs” implies that stations must have a…