Sunday Rest and DVD Rental: Does the More Lenient Law Apply to Past Offences?

Imagine: you run a small DVD rental shop in Strasbourg, near the cathedral. In 2003, you open on Sundays to meet demand. Suddenly, the labour inspectorate issues you a report for non-compliance with Sunday rest. You risk a fine and a conviction. But in 2005, a new decree expressly authorises your activity to derogate from this rule. Good news? Not so fast: the facts date back to 2003. Can the new law protect you? This is the question that the Court of Cassation decided in a ruling of 14 March 2006. And the answer is clear: yes, if the new law is more lenient, it applies even to offences committed before its entry into force. Analysis of this decision and its practical consequences for traders, landlords and property professionals.

The Facts: A Story Like Many Others

Mrs Y., manager of the company Vidéo Futur in Lyon, specialising in DVD and videocassette rental, was prosecuted for having, during 2003, infringed Article L. 221-5 of the Labour Code which imposes weekly rest on Sundays. At first instance and on appeal, the judges acquitted her on the ground that her business fell within the category of "entertainment undertakings" authorised to derogate from Sunday rest by rotation (Article L. 221-9 of the Labour Code). The Public Prosecutor (the Advocate General at the Lyon Court of Appeal) appealed to the Court of Cassation, arguing that DVD rental was not a live performance and that the derogation did not apply. In the meantime, on 2 August 2005, a decree came into force explicitly extending this derogation to DVD and videocassette rental establishments. The question was therefore: could this more favourable decree apply to offences committed in 2003, before its entry into force?

The Court's Reasoning — Analysed

The Court of Cassation quashed the decision of the Lyon Court of Appeal, but on a different ground from that argued by the Prosecutor. It recalled the fundamental principle set out in Article 112-1 of the Criminal Code: "New provisions shall apply to offences committed before their entry into force and which have not given rise to a final conviction where they are less severe than the old provisions." In short, if a new law reduces a penalty or broadens an exception, it benefits even those who committed the offence before it existed, provided they have not already been finally convicted. Here, the 2005 decree retroactively legalised DVD rental on Sundays. Since Mrs Y. had not been finally convicted (the case was pending), she was entitled to benefit from this more lenient law. The Court therefore referred the case back for application of this principle. In other words, this is a classic application of the principle of retrospective effect of more lenient criminal laws (rétroactivité in mitius). What few people know: this principle applies not only to "pure" criminal law, but also to regulatory texts such as decrees, insofar as they affect the characterisation of the offence.

What This Means for You — Practically

For traders in Strasbourg or Illkirch-Graffenstaden, this decision is a breath of fresh air. If you opened your DVD rental shop (or today, a similar business such as a video game store) on Sundays before the law expressly authorised it, you can invoke the principle of the more lenient law to avoid conviction, provided that the conviction is not final. Concretely, if you receive a fine or a summons, check whether a more favourable text came into force between the facts and the final judgment. Example: in Illkirch, a DVD renter who employed a worker on a Sunday in 2004 risks a fine of €1,500 per offence (Article R. 262-1 of the Labour Code). If a 2006 decree extends the derogation to his activity, he can ask the judge to apply that decree, even for days worked in 2004. However, note that this principle only applies if the new text is genuinely "less severe" (e.g., a reduced penalty, a broadened exception). If the text is more severe, it does not apply to prior offences (principle of non-retroactivity of more severe criminal laws).

Four Tips to Avoid This Type of Dispute

• Regularly check the regulations applicable to your activity. Derogations from Sunday rest evolve: since the Macron Law of 2015, international tourist zones (such as part of Strasbourg) allow extended Sunday openings. Keep yourself informed of the texts in force.
• Keep all evidence of your activity and opening hours. In the event of an inspection, you will need to prove that you fall within the scope of a derogation. A simple notice in the shop may suffice, but also keep employee schedules.
• If legal proceedings are initiated, do not accept a conviction without checking whether a more favourable text has intervened. As in the Vidéo Futur case, a decree subsequent to the facts can save you. Consult a lawyer specialising in employment law or commercial property law.
• If you are a landlord of commercial premises, inform your tenant of these developments. A tenant who can open on Sundays may generate higher turnover, which can justify a higher rent or a favourable renewal clause. undefined, I have seen cases where the landlord and tenant signed an addendum to allow Sunday opening, securing both parties.

Further Analysis: Related Case Law and Developments

This ruling is part of a consistent line of case law from the Court of Cassation on the retrospective effect of more lenient criminal laws. For example, a decision of 7 December 2004 (No. 03-85.476) applies the same principle to a public nuisance offence. The trend is clear: judges favour the application of the more lenient law, even for offences committed before its entry into force, provided that the new text is criminal (or quasi-criminal) in nature. For the future, traders must pay attention to laws that broaden derogations from Sunday rest (such as the Law for Growth, Activity and Equality of Economic Opportunities of 6 August 2015). These texts could be invoked for prior offences that have not been finally adjudicated.

In Practice: What to Do

FAQ — 5 Practical Questions

1. Can I open my DVD rental shop on Sundays today?
Yes, if you are in an authorised zone (tourist zone, commercial zone, or if your activity is expressly covered by a decree). Check with the prefecture or your town hall.

2. What should I do if I receive a fine for Sunday work?
Do not pay it immediately. Consult a lawyer to check whether a more favourable text has come into force since the facts. You can challenge the fine by invoking the principle of the more lenient law.

3. Does this principle apply to commercial leases?
Indirectly, yes. If your tenant is convicted for Sunday work, this can affect their business and therefore the payment of rent. It is better to include a clause in the lease authorising Sunday opening if the regulations allow it.

4. What are the time limits for invoking the more lenient law?
You must do so before the conviction becomes final (res judicata). In practice, as long as appeal options (appeal, cassation) are open, you can rely on a more favourable text.

5. Can a simple decree be considered a "more lenient law"?
Yes, the Court of Cassation confirmed in this ruling: as soon as the regulatory text has an impact on the characterisation of the offence or the penalty, it falls within the scope of Article 112-1 of the Criminal Code.

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