The Constitutional Court of Montenegro, at its session held 28 January 2026, annulled Article 35a of the Internal Trade Act (Zakon o unutrašnjoj trgovini “Official Gazette of Montenegro”, Nos. 049/08, 040/11, 038/19 and 084/24) (“Internal Trade Act“), imposing a ban on the operation of retail businesses on Sundays and on public holidays. The court found that the ban was inconsistent with the constitutional guarantees of freedom of entrepreneurship and equality before the law.
Violation of freedom of entrepreneurship
The Constitutional Court emphasized that the Constitution explicitly guarantees freedom of entrepreneurship, allowing restrictions only under strictly defined conditions and for constitutionally legitimate purposes:
“The Constitution precisely prescribes the reasons for which freedom of entrepreneurship may be restricted (for the purpose of protecting human health, the environment, natural resources, cultural heritage or the security and defense of Montenegro) and the legislator cannot independently prescribe new restrictions outside of these constitutional grounds, or without a clearly established legitimate goal in the public interest.”
The Court concluded that the legislature, when adopting the annulled provision, failed to demonstrate which constitutionally permitted aim the measure seeks to achieve and why the restriction is deemed necessary and proportionate to a purported aim.
Unequal treatment of market participants
The Constitutional Court was also concerned with the measure’s unequal treatment of entrepreneurs. While certain categories of traders, such as pharmacies, pastry shops, bakeries, newsstands, souvenir shops, gas stations, wholesale warehouses, flower shops, etc. were allowed to operate on Sundays and public holidays, other retail businesses were entirely prohibited from being open for business on those days.
According to the Court, the legislature did not demonstrate an objective and reasonable justification for such differentiation. By preferring one group of entrepreneurs over another without constitutionally acceptable grounds, the legislator placed market participants in an unequal legal position, contrary to the constitutional requirements of equality before the law and the state’s obligation to ensure equal conditions on the market.
Proposed amendment
The annulment of the ban on retail trade on Sundays and public holidays does not mean that the retail business will be free to operate without restrictions. The Constitutional Court stressed that its decision does not preclude the legislature from regulating retail activity on Sundays and public holidays, as long as constitutional standards are respected.
In that context, an amendment to the Internal Trade Act was submitted to the Parliament already in November 2025, while the constitutional review was still pending. It cites the protection of employee health as a justification for the ban and removes wholesale warehouses from the list of undertakings exempt from the ban. MPs are supposed to deliberate on the proposed amendment in the course of February 2026. It remains to be seen whether a mere reference to the protection of employees’ health, without an analysis of the necessity and proportionality of the measure, will be sufficient for the amendment to pass the constitutional muster.
