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Exclusion of eating establishments from the permission to provide separate smoking rooms under the Hamburg Act on the Protection from Passive Smoking held unconstitutional
Press Release No. 11/2012 of 21 February 2012
Order of 24 January 2012
1 BvL 21/11
According to the Hamburg Act on the Protection from Passive Smoking (Hamburgisches Passivraucherschutzgesetz - HmbPSchG), smoking in eating and drinking establishments is prohibited in principle. The only exceptions to the ban on smoking are single-room establishments with a space for guests of less than 75 square metres which are exclusively operated as drinking establishments, i.e. which do not offer prepared meals and do not have a license to do so under the regulations applicable to restaurants, pubs and bars. Furthermore, the provision of § 2.4 HmbPSchG, which is relevant in the submission proceedings, permits all other (mere) drinking establishments, but not eating establishments, to provide separate smoking rooms. Comparable regulations with regard to permitting the provision of smoking rooms in eating and drinking establishments do not exist in other Länder (states). Other Länder either have strict bans on smoking, or permit providing separate smoking rooms regardless of whether the respective establishments offer prepared meals or not.
The plaintiff in the original proceedings operates an eating and drinking establishment situated next to a motorway that consists of a pub and a "club room". The plaintiff has a license to operate an eating and drinking establishment on the premises. The competent administrative authority denied her application for an exemption from the ban on smoking to establish a smoking room in the club room. Its reasoning was that the legal regulation applicable to eating establishments did not admit of an exemption from the ban on smoking. The action brought against the denial resulted in the submission made to the Federal Constitutional Court by the Administrative Court, which regards the exemption provision of § 2.4 HmbPSchG as unconstitutional. It holds the view that the provision infringes the free exercise of an occupation in conjunction with the general principle of equality because the provision, without a justifying reason, denies eating establishments, unlike drinking establishments, the opportunity to provide separate smoking rooms.
The First Senate of the Federal Constitutional Court found that § 2.4 HmbPSchG is incompatible with the free exercise of an occupation, which is guaranteed in Article 12.1 GG in conjunction with the general principle of equality from Article 3.1 GG, to the extent that the provision denies operators of eating establishments, unlike operators of drinking establishments, the opportunity to permit smoking in separate rooms of their establishments. Until a new statutory provision is enacted, the provision continues to apply with the proviso that separate smoking rooms may be set aside also in eating establishments.
In essence, the decision is based on the following considerations:
As the Senate fundamentally held in its judgment of 30 July 2008 (1 BvR 3262/07 et al., see Press Release no. 78/2008 of 30 July 2008), the ban on smoking in eating and drinking establishments encroaches on the publicans' free exercise of their profession. The consequence of the distinction made between eating and drinking establishments in § 2.4 sentence 1 HmbPSchG is that operators of eating establishments cannot, freely exercising their occupation, create an environment in their establishments that is attractive to guests woh smoke as well. This can involve considerable economic disadvantages especially for eating establishments which primarily serve alcoholic beverages. The unequal treatment is not objectively justified because there is no sufficiently weighty reason for the differentiation.
1. The fact that the distinction made between eating and drinking establishments in the provision was the result of a political compromise of the parliamentary groups supporting the government in the Hamburg state parliament at the time of the enactment of the statute is by itself not a sufficient reason for differentiation.
2. Furthermore, the unequal treatment cannot be justified by reasons of health protection. With a view to the protection of the health of the catering staff, the required connection between this legislative objective and the differentiation between eating and drinking establishments opted for by the legislature does not exist. For not only in eating establishments but also in drinking establishments the staff, when serving the guests in the smoking rooms permitted there, is exposed to the dangers of passive smoking.
The unequal treatment cannot be justified by the protection of the non-smoking guests' health either. No scientific findings have been submitted according to which the combination of eating and passive smoking results in particularly high pollution levels for non-smoking guests. But even this assumption would not provide a justification for denying the operators of eating establishments the possibility, existing for other establishments, of providing smoking rooms. The guests can have their meals in non-smoking areas; according to the legal regulations, the smoking areas have to be separated from the non-smoking areas in a manner that excludes a hazard caused by passive smoking.
The consideration that by not permitting smoking rooms in eating establishments, a larger number of people are protected from the dangers of passive smoking would not be able to provide an objectively justifiable reason for differentiation either. For the objective of the provision to reduce the opportunities for smoking would not have an intrinsic connection to the differentiation between eating and drinking establishments.
3. It would also not be possible to justify the unequal treatment of eating and drinking establishments by putting forward that the respective economic impact of a ban on smoking is possibly different. This argument already lacks a sufficient factual basis. The provision only concerns establishments that have the architectural possibilities of setting aside a room for guests who smoke; here, it cannot be ascertained that a ban on smoking is typically a considerably heavier economic burden on establishments that only serve drinks than it is on establishments which offer prepared meals or are licensed to do so.
The assumption as a reason for differentiation that the economic burden on the drinking establishments is generally heavier than that on the eating establishments also cannot be based on the Federal Constitutional Court's judgment of 30 July 2008 in which the court found that provisions on bans on smoking in eating and drinking establishments were incompatible with the free exercise of a profession because the bans disproportionately burdened smaller establishments which primarily serve alcoholic beverages. The decisive criterion of differentiation was explicitly not the fact that such corner pubs, or single-room pubs, are drinking establishments. What was decisive was the special type of establishment, which is characterised in particular by regulars who smoke, and for which a decrease in turnover resulting in a threat to its existence would have to be feared as a consequence of a ban on smoking. Only in this connection was the different range of catering used as one of several characteristics of differentiation, and was cited again in the description of the legislature's possibilities of drafting.