This sentence settles the appeal made by the entity NUEVOS ESPACIOS COMERCIALES, S.A., against the Order dated 20 September 2007 of the Tourism, Commerce and Sports Board. This Order imposes a fine of 600,000 euros on the company for committing a serious violation of Article 93.b of Law 1/1996, dated 10 January, on Domestic Trade in Andalusia (hereinafter the “Andalusia Trade Law”).
This violation corresponds to the opening of commercial premises in the Vialia Shopping Centre in Malaga every Sunday and bank holiday since the 15 April, 2007. This is in violation of Article 19 of the Andalusia Trade Law which establishes a maximum of eight days per year for businesses to open on Sundays and bank holidays.
Notwithstanding the above, Article 20.1 of the Andalusia Trade Law states that premises in border areas and in land, sea or air stations / ports and means of transport are free to determine the days and times they open to the public.
Given this rule, the first matter settled in the sentence is whether the shopping centre located in Malaga railway station (Vialia Shopping Centre) is entitled to the freedom of opening hours as stipulated in Article 20.1.c) of the Andalusia Trade Law.
Regarding the above, the location of the shopping centre was checked. The shopping centre is within the grounds of the railway station as can be seen in the trade license granted by the local government itself, and which has been further proven with plans and aerial photographs that show there is both a physical and functional connection between the station and the shopping area. Both are located in the same building, and no legal or physical division exists between the different areas, with the shopping centre located in a single area.
In this respect, it is also argued that the Andalusia Trade Law establishes the location of these premises as a requirement for the application of the freedom of opening hours in Article 20.1.c). The premises must be inside land transport stations but they are not required to provide direct and necessary services related to the transport services themselves. Neither does it restrict the concept of station to the lines, platforms or facilities which are strictly needed for rail transport.
Following this reasoning, the Andalusia High Court of Justice ruled in favour of the appeal made against the authorities and therefore declared the Order of 20 September 2007 unlawful as the collective commercial premises is located within the grounds of the railway station, making freedom of opening hours applicable as stipulated in Article 20.1.c) of the Andalusia Trade Law. The shopping centre, therefore, has total freedom to determine the days and times it is open to the public, without the restrictions quoted from Article 19 being applicable to it.