Federal Constitutional Court - Press office -

Press release no. 11/2012 of 21 February 2012

Order of 24 January 2012 – 1 BvL 21/11 –

Exclusion of eating establishments from the permission to provide
separate smoking rooms under the Hamburg Act on the Protection from 
Passive Smoking held unconstitutional


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. 


This press release is also available in the original german version.