Federal Constitutional Court - Press office -
Press release no. 78/2008 of 30 July 2008
Judgment of 30 July 2008
– 1 BvR 3262/07; 1 BvR 402/08; 1 BvR 906/08 –
Constitutional complaints in "ban on smoking" cases successful
The constitutional complaints of two publicans and a discotheque owner
who objected to the provisions of the non-smoking laws of
Baden-Württemberg and Berlin were successful.
Facts of the case:
In order to protect people, especially children and youths, from the
dangers of passive smoking, the Non-Smoking Act
(Landesnichtraucherschutzgesetz) of the Land Baden-Württemberg has
banned smoking in a variety of public buildings, including eating and
drinking establishments and discotheques, since 1 August 2007.
Nonetheless, the operator of an eating and drinking establishment is
granted the opportunity to establish separate rooms in which smoking is
allowed. This exception does not apply in the case of discotheques; to
this extent the ban on smoking is without exceptions. The operators of
eating and drinking establishments or, as the case may be, discotheques
are responsible for ensuring that the ban on smoking is complied with
in the establishments they operate. The Berlin Non-Smoking Act
(Nichtraucherschutzgesetz), which entered into force on 1 January 2008,
contains similar provisions. It prohibits tobacco smoking in eating and
drinking establishments, including clubs and discotheques. The Berlin
Non-Smoking Act provides for an exception in the case of separate rooms
which are set aside in eating and drinking establishments as well as in
the case of separate rooms which are set aside in discotheques that
only admit adults.
The complainant in proceedings 1 BvR 3262/07 operates a small
single-room pub in Tübingen, whilst the complainant in proceedings 1
BvR 402/08 does the same in Berlin. Both pubs are frequented mainly by
regular customers. According to the complainants' submissions, the
percentage of smokers among the patrons is approximately 70 per cent.
The complainants object that neither the Baden-Württemberg Non-Smoking
Act nor the Berlin Non-Smoking Act provides exceptions for single-room
pubs. They regard this as a violation of their fundamental rights under
Article 12.1 of the Basic Law (Grundgesetz - GG), which guarantees
occupational freedom as well as under Article 14.1 GG, which guarantees
the right of ownership. They allege that the existing exceptions for
eating and drinking establishments with several rooms distort
competition in favour of large establishments and endanger the economic
existence of single-room establishments. Since they cannot for
practical reasons have separate smoking rooms, the ban on smoking leads
in the end to single-room establishments becoming unprofitable due to
the resulting decrease in turnover and thus having to be closed. They
argue that what is in practice a complete ban on smoking, which leads
in a foreseeable way to a certain common type of eating and drinking
establishment no longer being financially viable, is no longer
proportionate. Furthermore, they argue that a less restrictive
alternative which does justice to the contradictory interests of
smokers, non-smokers and establishment operators would be to require
eating and drinking establishments which allowed smoking to put up a
sign to that effect rather than to impose a ban on smoking. This, they
say, would enable non-smokers to decide before entering eating and
drinking establishments whether they wished to expose themselves to
tobacco smoke or not.
The complainant in proceedings 1 BvR 906/08 directs its complaint
against the Non-Smoking Act of the Land Baden-Württemberg, which bans
it as a discotheque operator from allowing smoking on its premises and,
in addition, excludes it from establishing smoking rooms. The
complainant argues that the space situation in its large discotheque
would allow it to separate one or more rooms as smoking areas without
any problem. It is of the opinion that the complete ban on smoking in
discotheques is a disproportionate provision concerning the exercise of
its occupation. As far as it is concerned, sufficient health protection
could be achieved in discotheques through a voluntary ban on smoking
and the use of modern ventilation systems. A less restrictive means of
providing health protection would also be to establish smoking rooms in
discotheques. It argues that a complete ban on smoking violates in
addition the prohibition of excessiveness. In any case, it believes
that it would be preferable in discotheques that only admit adults to
create separate smoking rooms. The complainant submits that in
addition the provision violates the principle of equality. It argues
that discotheque operators are being treated less well in comparison
with operators of eating and drinking establishments because the latter
have the option of establishing smoking rooms. It points out that the
operators of party tents in which dance parties are often held are
exempted from the ban on smoking entirely, while particularly strict
provisions apply to discotheque operators. In its opinion there are no
objective reasons for this unequal treatment.
The First Senate of the Federal Constitutional Court found that the
challenged provisions had violated the complainants' fundamental right
of occupational freedom.
Admittedly, the legislature is not prevented from imposing a strict ban
on smoking in eating and drinking establishments to which there can be
no exceptions. However, if it decides in favour of a concept whereby
the goal of health protection is pursued with reduced vigour and
exceptions to the ban on smoking are allowed due to the occupational
interests of publicans, then these exceptions must also extend to
smaller establishments which primarily serve alcoholic beverages
("corner pubs") and which are subject to an especially heavy economic
burden. The Land legislatures have until 31 December 2009 to amend the
law. In this connection, they may decide in favour of a strict concept
of protection for non-smokers in eating and drinking establishments
which does not allow any exceptions; alternatively, they may adopt a
less strict concept of protection which does allow exceptions, but
then, however, logically requires account to be taken of the special
burdens in the individual areas of the eating and drinking sector and
which has to be drafted to afford equal treatment. Due to the high
significance of people's protection against the dangers of passive
smoking, the challenged provisions will remain in force until the
legislature has amended the law. Thus the current provisions regarding
the ban on smoking will initially remain in force in Baden-Württemberg
and Berlin. In order to avoid a situation where the operators of
smaller eating and drinking establishments would suffer damage to their
livelihood, the Federal Constitutional Court extended, however, the
application of the exceptions already provided for in the non-smoking
laws by adding an exception for smaller establishments which primarily
serve alcoholic beverages until the amended law takes effect. The
prerequisites for such an exception are that the establishment
concerned does not offer prepared meals, does not have space for
patrons exceeding 75 square meters, does not have a separate room which
is set aside and does not admit persons under 18 years of age. In
addition, the establishment must have a sign in its entrance area
indicating that it is a smokers' establishment that does not admit
persons under 18 years of age.
If a non-smoking law allows the establishment of smoking rooms in
eating and drinking establishments as an exception to the ban on
smoking, then the general exclusion of discotheques from this privilege
is not justified. Until the law is amended, which the legislature must
do by 31 December 2009, the provision applies subject to the proviso
that smoking rooms - without dance floors - may be established in
discotheques which only admit people over the age of 18.
Two judges, Judge Bryde and Judge Masing, have each attached dissenting
opinions.
In essence, the decision is based on the following considerations:
I. The ban on smoking in eating and drinking establishments amounts
to a serious encroachment on the publicans' free exercise of their
occupation. In view of the fact that the percentage of smokers
among the adult population in Germany amounts to 33.9 per cent,
this can - depending on the type of gastronomy being offered and
thus the patrons being targeted - result in a sharp drop in
turnover for the operators of eating and drinking establishments.
This encroachment is not justified in the shapes that it takes in
the provisions to be evaluated here. It is true that the
legislature in seeking to protect people from danger to their
health through passive smoking pursues a community interest of
paramount importance. The challenged provisions are not, however,
proportionate. They burden in an unreasonable way the operators of
smaller single-room establishments which primarily serve alcoholic
beverages.
1. When weighing the seriousness of the encroachment against the
weight of reasons that justify it, one must respect the limits
of what is reasonable. In this context, due to the scope for
assessment, evaluation and action accorded to the legislature
it would not be prevented from giving priority to the
protection of the health of the population at large, including
that of establishment employees, over the liberty rights which
would be consequently impaired, and it would not be prevented
from imposing a strict ban on smoking in eating and drinking
establishments to which there can be no exceptions. The
legislatures were entitled to assume on the basis of a
multitude of scientific investigations that there are serious
health risks associated with passive smoking. Since health and
especially human life are among those interests valued
particularly highly, it is possible to seek to protect them
with means that severely encroach on a person's fundamental
right to exercise his or her occupation. The legislature is not
bound by the constitution, in view of the occupational freedom
of the operators of eating and drinking establishments, to
allow exceptions to the ban on smoking in relation to the
operation of eating and drinking establishments in buildings
and fully enclosed rooms.
2. However, the proportionality test leads to a different result
where the issue for decision is not a strict ban on smoking,
but rather - as in the present cases - the selection of a
concept whereby the goal of health protection is pursued with
reduced vigour due to the interests of publicans and smokers.
Both in Baden-Wurttemberg as well as in Berlin exceptions to
the ban on smoking which are of considerable significance in
practice, such as, for example, the establishment of separate
smoking rooms, are allowed. It is true that the scope for
assessment, evaluation and action accorded to the legislature
do not prevent it from selecting a concept to protect
non-smokers in eating and drinking establishments which is less
stringent about enforcing the health protection of non-smokers
when balanced against the liberty rights of establishment
operators and smokers. It must then, however, also carry
through this decision consistently.
For this reason, the specific effects of the ban on smoking for
smaller establishments which primarily serve alcoholic
beverages acquire greater importance in the course of the
required weighing of all of the interests. The ban on smoking
results in a significantly heavier economic burden for them
than for the operators of larger premises because of the high
percentage of smokers among their patrons; there is support for
this in particular from the surveys presented by the Federal
Statistics Office (Statistisches Bundesamt). In the case of
larger eating and drinking establishments which have separate
rooms or which can make such rooms available, the ban on
smoking is only relative; the establishments' interest in also
being able to cater for guests who smoke is satisfied. On the
other hand, there is a complete ban on smoking in the case of
smaller eating and drinking establishments if separate rooms
are not available, which is usually the case due to the fact
that they have less floor space. The operators of such
establishments are expected to strictly comply with the ban on
smoking even if it costs them their economic existence although
the Land legislature did not want to pursue the desired health
protection without restriction, but only whilst taking into
account the occupational needs of the publicans. The dangers to
health caused by passive smoking are thus given a different
importance in comparison to the occupational freedom of the
publicans. In view of the retraction of the protection sought,
the extent of the burden on them is no longer in a reasonable
proportion to the advantages for the public sought to be
achieved by the Land legislature in relaxing the ban on
smoking. The smaller establishments which primarily serve
alcoholic beverages are not of significance for effective
protection of non-smokers since the majority of their patrons
are smokers. The considerable decline in turnover following the
coming into force of the bans on smoking show that such eating
and drinking establishments obviously have no success in
generating a greater interest in their gastronomy on the part
of their patrons who do not smoke.
II. In addition, the constitutional complaint of the discotheque
operator against the provisions of the Baden-Württemberg
Non-Smoking Act is justified. It is incompatible with Article 12.1
GG in conjunction with Article 3.1 GG to exclude discotheques that
do not admit youths from the opportunity of establishing smoking
rooms. The general exclusion of discotheques from the privilege to
be seen in the exclusion of separate smoking rooms from the ban on
smoking is not justified. The objectives pursued by the
legislature are not of such a kind or of such a weight that they
could justify unequal legal consequences for discotheques on the
one hand and other eating and drinking establishments on the
other.
It is true that it is not constitutionally objectionable that the
Land legislature assumed that there is a particularly high
concentration of pollutants in discotheques. It can rely on
relevant scientific investigations in support of this. This fact
does not, however, make it necessary to generally exclude
discotheques from this exception when other eating and drinking
establishments are permitted to have smoking rooms. If smoking is
only allowed in separate rooms which are completely set aside,
then the argument of the increased dangerousness of passive
smoking in discotheques which relates to the particular kind of
operation vanishes. Nor can a reference to the great significance
of the copycat effects and peer pressure in the case of youths or
young adults justify treating discotheques differently to other
types of eating and drinking establishments. It is sufficient for
achieving the protection sought for this group of the population
if the ban on establishing smoking rooms is limited to those
discotheques that admit persons under 18 years of age.
III. The Land legislatures have the option, in connection with the
enactment of the necessary amendment, of giving priority to the
goal of protecting people's health against the dangers of passive
smoking and deciding in favour of a strict concept to protect
non-smokers in eating and drinking establishments which does not
allow any exceptions; alternatively, they may adopt a less strict
concept of protection which allows the interests of establishment
operators and smokers more leeway and permits exceptions to the
ban on smoking. If it is decided that the protection of health
will have a lower priority, then the exceptions permitted to the
ban on smoking must, however, logically also take into account the
special burdens on individual areas of the eating and drinking
sector and be drafted to afford equal treatment. For this reason,
the legislature, which allows smoking in separate rooms as an
exception to the ban on smoking in eating and drinking
establishments, may not lose sight in particular of the interests
of smaller establishments which primarily serve alcoholic
beverages. Since the space limitations of these establishments do
not usually allow for the establishment of separate smoking areas,
only exemption from the ban on smoking can be considered in their
case.
Six judges concurred on the permissibility of the strict ban on smoking
(I 1) and the disproportionality of the rule for smaller establishments
which primarily serve alcoholic beverages (I 2), whilst in both cases
two judges dissented; otherwise the decisions were unanimous.
Dissenting opinion of Judge Bryde
From the point of view of the legislature, the challenged provisions
are based on a sound concept. There is no indication that the Land
legislatures intended to make the goal of protection of non-smokers
relative so that the protection of life and health could be weighed as
one factor in relation to economic interests. The legislation sought to
guarantee non-smokers smoke-free eating and drinking establishments,
i.e. at least one smoke-free main room. The intention was to allow
exceptions to the ban on smoking only to the extent that this did not
endanger the protection of non-smokers. The legislature may not have
been entirely successful in its implementation of this, but it is a
matter for its legislative prerogative.
Dissenting opinion of Judge Masing
The challenged provisions are based on a statutory concept of an
exacting but balanced protection of non-smokers, which is in principle
constitutionally sound. On the other hand, a ban on smoking in eating
and drinking establishments without exceptions would be
disproportionate.
The challenged provisions are based on the principle that the
protection of non-smokers should clearly be given precedence. They set
forth a duty on the part of every eating and drinking establishment to
aim to cater primarily for non-smokers and only allow the establishment
of smoking rooms by way of addition. This is in principle also
justified in the case of corner pubs for the purposes of the protection
of health. In the same way as there is no reason to exempt small
enterprises from conditions imposed for environmental reasons, there is
no reason to generally exempt corner pubs because they are hit
particularly severely. It would be adequate constitutionally if there
were hardship provisions to soften the transition. Only to the extent
that such provisions do not exist are the challenged provisions
unconstitutional. There is no need for further exceptions and they
weaken the legislative concept of protection substantially.
On the other hand, a radical ban on smoking in eating and drinking
establishments without any exceptions would be unconstitutional; this
did not have to be decided in the present case. Such a ban is not
necessary for the protection of non-smokers where non-smoking rooms
exist; and the protection of corner pubs from the loss of patrons does
not in principle justify it. Nor does the objective of addiction
prevention justify it. Admittedly, the legislature has considerable
scope for discretion. However, the legislature cannot fully ban
tobacco, food or drink from the public arena by prohibiting them at
social gatherings or celebrations. This kind of uncompromising ban
would be disproportionate and would entail a risk of paternalism.
This press release is also available in the original german version.
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