H e a d n o t e

to the order of the First Senate of 24 January 2012

– 1 BvL 21/11 –

It is a violation of the principle of equality if the law allows, by way of exception to the statutory ban on smoking in eating and drinking establishments, separate smoking rooms in drinking establishments, but excludes eating establishments from this privilege.

FEDERAL CONSTITUTIONAL COURT

– 1 BvL 21/11 –

IN THE NAME OF THE PEOPLE

In the proceedings for the constitutional review of

whether § 2.4 of the Hamburg Act on the Protection from Passive Smoking (Hamburgisches Passivraucherschutzgesetz, – HmbPSchG) of 11 July 2007 (Law and Ordinance Gazette (Gesetz- und Verordnungsblatt – GVBl) p. 211), most recently amended on 15 December 2009 (GVBl p. 506), is incompatible with Article 12.1 in conjunction with Article 3.1 of the Basic Law (Grundgesetz – GG) to the extent that such provision treats eating establishments that offer prepared meals or that have a license to do so pursuant to § 3 of the Eating and Drinking Establishments Act (Gaststättengesetz – GastG) in the version of 20 November 1998 (Federal Law Gazette (Bundesgesetzblatt – BGBl) I p. 3418), most recently amended on 7 September 2007 (BGBl I pp. 2246, 2257), differently to drinking establishments (see § 1.1 no. 1 GastG), in that it does not allow them to create separate rooms in which smoking is permitted.

– suspension of proceedings and submission order of the Hamburg Administrative Court (Verwaltungsgericht ) of 10 August 2011 (4 K 3551/10) –

the Federal Constitutional Court – First Senate – sitting with the justices

Vice-President Kirchhof,
Gaier,
Eichberger,
Schluckebier,
Masing,
Paulus,
Baer, and
Britz

held as follows on 24 January 2012:

§ 2.4 HmbPSchG of 11 July 2007 (Hamburg GVBl p. 211), most recently amended on 15 December 2009 (Hamburg GVBl p. 506), is incompatible with Article 12.1 in conjunction with Article 3.1 GG to the extent that the provision does not allow eating establishments that offer prepared meals or that have a license to do so pursuant to § 3 GastG in the version of 20 November 1998 (BGBl I p. 3418), most recently amended on 7 September 2007 (BGBl I p. 2246 <2257>), to create separate rooms in which smoking is permitted.

Until a new provision is enacted, the provision will continue to apply with the proviso that it also apply to establishments that offer prepared meals or that have a license to do so pursuant to § 3 GastG in the version of 20 November 1998 (BGBl I p. 3418), most recently amended on 7 September 2007 (BGBl I p. 2246 <2257>).

Grounds:

A.

The constitutional complaint relates to the question of whether the fact that the Hamburg Act on the Protection from Passive Smoking allows, by way of exception to the general ban on smoking in eating and drinking establishments, separate smoking rooms in drinking establishments, but excludes eating establishments from this privilege is compatible with Article 12.1 in conjunction with Article 3.1 GG.

I.

1. a) § 2.1 of the Hamburg Act on the Protection from Passive Smoking of 11 July 2007 (GVBl p. 211), most recently amended by the Act to Amend the Hamburg Act on the Protection from Passive Smoking (Gesetz zur Änderung des Hamburgischen Passivraucherschutzgesetze s) of 15 December 2009 (GVBl p. 506) prohibits smoking in eating and drinking establishments as well as in numerous other publicly accessible institutions. The relevant provisions state:

§ 2

Ban on smoking

(1) Subject to the provisions of subsections 2 to 7, smoking is prohibited in

1. to 8 ...

9. institutions in which drinks or prepared meals are served for immediate consumption (eating and drinking establishments), including establishments that are operated as discotheques.

10. to 12. ...

(2) to (8) ...

The only exceptions to the ban on smoking are single-room establishments with a space for guests of less than 75 square metres which do not offer prepared meals and do not have a license to do so under the regulations applicable to restaurants, pubs and bars (§ 2.5 HmbPSchG).

§ 2.4 HmbPSchG allows eating and drinking establishments which do not offer prepared meals and which do not have a license to do so under the regulations applicable to restaurants, pubs and bars to provide smoking rooms. The provision states:

(4) Separate rooms in which smoking is allowed may be provided in the eating and drinking establishments defined in subsection 1 number 9 which do not offer prepared meals and do not have a license to do so pursuant to § 3 GastG in the version of 20 November 1998 (BGBl I p. 3419), most recently amended on 7 September 2007 (BGBl I p. 2246, 2257). The preconditions for this are that:

1. the rooms are structurally separated in a manner that excludes a danger for others caused by passive smoking and the smoking rooms are ventilated,

2. no persons under 18 years of age are permitted to enter the rooms and

3. the rooms are not larger than the rest of the establishment’s guest area.

In a similar manner to § 2.4 HmbPSchG, § 2.3 HmbPSchG permits smoking rooms to be created in other institutions where the ban on smoking generally applies (e.g. government agencies, hospitals, residential facilities, higher education institutions, sports halls and penal institutions). It is also a precondition in these cases that “no prepared meals are served for immediate consumption” (§ 2.3 sentence 2 no. 3 HmbPSchG).

The operators of eating and drinking establishments are responsible for compliance with the ban and must, if they become aware of a violation, take the necessary measures to prevent further violations (§ 4.1 no. 2 and § 4.2 HmbPSchG). Any person who fails to comply with this obligation commits an administrative offence (§ 5.1 no. 4 HmbPSchG).

b) Comparable regulations with regard to permitting the creation of smoking rooms in eating and drinking establishments do not exist in other Länder (states). While a strict ban on smoking applies in eating and drinking establishments in Bavaria and Saarland and it is thus anyway impermissible to create smoking rooms there, all of the other Länder permit smoking in separate rooms under special circumstances without making a distinction on the basis of whether prepared meals are offered in the respective eating and drinking establishments or not.

2. By way of exception to the applicable smoking ban, the Hamburg Act on the Protection from Passive Smoking provided in its original version of 11 July 2007 (GVBl p. 211) for the possibility of creating smoking rooms in eating and drinking establishments and in various other institutions. The Act required as a precondition that the rooms be structurally separated in a manner that excluded a danger to others caused by passive smoking and that the rooms be ventilated and expressly designated as smoking rooms (§ 2.3 HmbPSchG old). No distinction between eating and drinking establishments was made. At that time the Act did not yet contain an exemption for smaller establishments which primarily serve alcoholic beverages.

Following the judgment of the Federal Constitutional Court of 30 July 2008
(Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 121, 317) in which it held that laws in the Länder of Baden-Württemberg and Berlin on the ban on smoking in eating and drinking establishments were incompatible with Article 12.1 GG because they disproportionately burdened smaller establishments which primarily served alcoholic beverages, the Land legislature undertook the necessary amendments to the Hamburg Act on the Protection from Passive Smoking. The government parties at the time did not agree initially on a reform: While the majority of the CDU parliamentary group were in favour of far-reaching exceptions to the ban on smoking in eating and drinking establishments, the Green Alternative List (Grün-Alternative Liste – GAL) advocated a strict ban on smoking without exceptions. On 25 November 2009 the government parties in the Parliament of the Free and Hanseatic City of Hamburg (Bürgerschaft der Freien und Hansestadt Hamburg ) finally submitted a joint draft bill to amend the Hamburg Act on the Protection from Passive Smoking (parliamentary printed paper (Drucks ) 19/4713), which subsequently resulted in the version of the Act at issue here. In the grounds for the proposed legislation, brief reference is made to the necessity for amending the Act to comply with the judgment of the Federal Constitutional Court. Furthermore, the grounds indicate that the legislation’s general purpose of protecting against the dangers of passive smoking should be considered as before, but that the interests of eating and drinking establishments should also be taken into account.

II.

1. The plaintiff in the original proceedings (hereinafter referred to as the plaintiff) operates an eating and drinking establishment which is located in Hamburg on an off-motorway service area on motorway A 7. The eating and drinking establishment consists of a pub with an area of 70 square metres and an additional “club room” of 33 square metres. The plaintiff has a license to operate an eating and drinking establishment on the premises which serves drinks of all kinds and meals.

In June 2010 she applied to the competent administrative authority for an exemption from the ban on smoking so that she could turn the club room into a designated smoking room. She argued that 80% of her guests were lorry drivers and that almost all of them were smokers. She further argued that she had already suffered a drop in turnover of up to 20% at the time the original version of the Hamburg Act on the Protection from Passive Smoking was introduced. Moreover, the newly introduced complete ban on smoking in eating establishments posed a threat to her economic survival. She submitted that she expected a drop in turnover of approx. 60% since her lorry driver customers would almost completely cease coming to her. The fact that the surrounding Länder permitted the establishment of smoking rooms and that lorry drivers were particularly mobile made this more likely.

The administrative authority refused to grant an exemption stating that the law applied without exception and did not provide for exceptions in the case of eating establishments. Following her unsuccessful objection to the refusal, the plaintiff sought a declaration from the Administrative Court that she was permitted to designate a certain more closely defined area of her eating and drinking establishment as a smoking room and to operate it as such.

2. The Administrative Court suspended the proceedings and submitted the case to the Federal Constitutional Court for a decision on the question of whether § 2.4 HmbPSchG is compatible with Article 12.1 in conjunction with Article 3.1 GG to the extent that such provision treats eating and drinking establishments that offer prepared meals or that have a license to do so pursuant to § 3 of the Eating and Drinking Establishment Act differently to drinking establishments (see §1.1 no. 1 GastG) in that it does not allow them to create separate rooms in which smoking is permitted.

The Administrative Court held that the constitutionality of § 2.4 HmbPSchG is significant for its decision and stated the following: If the provision is constitutional, the statement of claim must be dismissed; this is because there would be an absolute ban on smoking in the plaintiff’s eating and drinking establishment and she would not be permitted to operate a smoking room. If the provision were unconstitutional, the plaintiff would in contrast at least have the chance that the legislature might enact a provision that was more favourable for her and that she might thus succeed on her claim for a declaratory judgment. The action for a declaratory judgment is admissible and well-founded except for the fact that the plaintiff operates an eating and not a drinking establishment. The provision cannot be interpreted in conformity with the Basic Law. The clear wording of the law excludes an interpretation to the effect that separate smoking rooms may also be provided in the case of eating establishments. It is true that the unconstitutionality of § 2.4 HmbPSchG would not directly result in it being permissible for the plaintiff to provide a separate smoking room. However, the fact that the plaintiff has a chance of obtaining a more favourable provision is in and of itself sufficient in cases of a violation of the principle of equality to show that the order for submission is significant for the submitting court’s judgment.

The Administrative Court supports its conviction that § 2.4 HmbPSchG is unconstitutional by making reference to the judgment of the Federal Constitutional Court of 30 July 2008 (BVerfGE 121, 317). The ban on smoking in eating and drinking establishments encroaches on the plaintiff’s free practice of her occupation. This encroachment is not justified; the form of the exception to the ban on smoking pursuant to § 2.4 HmbPSchG violates Article 3.1 GG because the exception results in eating establishments being treated differently to drinking establishments without any objective reason for doing so.

III.

The Hamburg Higher Administrative Court (Oberverwaltungsgericht ), the Federal Statistical Office, the German Cancer Research Center and the German Hotel and Restaurant Association (Deutscher Hotel- und Gaststättenverband – DEHOGA), represented by its Hamburg branch, commented on the order for a submission. The Bundestag , the Bundesrat , the Federal Government, the Parliament and the Senate of the Free and Hanseatic City of Hamburg and the parties involved in the original proceedings have refrained from submitting comments.

1. The President of the Hamburg Higher Administrative Court advises that the court has not previously ruled on the issues regarding the constitutionality of the Hamburg Act on the Protection from Passive Smoking raised in the suspension of proceedings and submission order.

2. The Federal Statistical Office advises that since 2007 turnover in establishments which primarily serve alcoholic beverages (drinking establishments, discotheques and dance halls, bars, pubs and other establishments which primarily serve alcoholic beverages) has been significantly lower than in establishments that primarily serve food (restaurants with traditional service, self-service restaurants, kiosks, cafés, ice cream parlours). It states that the turnover in both sectors of the economy has declined in comparison to the base year of 2005 and decreased more significantly since January 2007, which was when the value-added tax rate was increased. Turnover has decreased more significantly in establishments that primarily serve alcoholic beverages than in establishments that primarily serve food since January 2007; accordingly, a comparison of the real turnover figures for 2010 and 2005 show that in 2010 establishments that primarily serve alcoholic beverages only achieved 76% and establishments that primarily serve food only achieved 85.6% of their 2005 turnover. It was only during the course of 2009 that the trend in both areas stabilised and reached 77.1% and 86.6 % respectively in September 2011.

The Federal Statistical Office was unable to comment on the question of whether differences in turnover development exist between single-room pubs and larger eating and drinking establishments. The Federal Statistical Office found that it was unable to assess to what extent the development described can be attributed to Land -specific protection from passive smoking legislation because of the differences in legislation in different Länder and the different times at which it has entered into force and been repealed. Accordingly, the situation is different to the situation prevailing at the time the Federal Constitutional Court submitted its enquiry during the proceedings underlying the decision by the Senate of 30 July 2008 (BVerfGE 121, 317). In the opinion submitted for those proceedings, it was possible for a certain period during 2007 to clearly divide the Länder into those with similar protection from passive smoking legislation and those without any comparable legislation at all.

3. The German Cancer Research Centre advises that it makes no difference from a scientific point of view whether the hazardous substances contained in tobacco smoke are inhaled in a drinking establishment or in a restaurant serving meals. Such substances are in any case a health hazard and carcinogenic, particularly for the employees. The “compromise” whereby smoking would be forbidden in eating establishments but permitted in drinking establishments originates from a position paper prepared by the tobacco industry in 2005. It conflicts with cancer research findings and the goal of putting health protection before economic considerations.

4. The Hamburg branch of the German Hotel and Restaurant Association submitted the following opinion on the Association’s behalf. It distinguishes in its opinion between three types of eating and drinking establishments: (1.) pure drinking establishments, (2.) eating establishments that focus on serving drinks but which also offer simple meals or a small selection of meals, and (3.) restaurants whose focus is clearly on the meals they serve.

It states that there are relatively few such establishments in Hamburg that do not serve any meals at all; at most there are 60 or 80 such businesses. Those businesses that have not served meals all along are only likely to profit slightly from the statutory reform. The situation is somewhat different for those eating and drinking establishments which only discontinued serving meals after the statutory reform. In these cases turnover from meals disappeared without replacement, while there was no possibility of attracting new guests, namely smokers and their companions in any sizable quantity.

According to its opinion, the operators of establishments that focus on serving drinks complain regularly that their turnover has decreased dramatically following the reform of the Hamburg Act on the Protection from Passive Smoking. Some operators report decreases in turnover from 30% to 50%. These are mainly attributed to the ban on smoking. It has become more unattractive for groups of guests who smoke to visit such eating and drinking establishments since the need to leave the establishment in order to smoke is regarded as something that interferes with the smooth flow of conversation. The time guests spend in the establishments has become significantly shorter. In addition, guests who live on the outskirts of Hamburg have switched to eating and drinking establishments in the neighbouring Länder of Schleswig-Holstein and Lower Saxony.

Its opinion also indicates that there were fewer complaints about decreases in turnover in the case of “traditional” restaurants. Such restaurants have also complained now and then about guests spending less time on the premises, particularly in the colder months of the year; however, there are also reports of an increase in guests who appreciate being able to enjoy their food without the smell of smoke.

B.

The order for submission is admissible. In particular, the submitting court has sufficiently justified its view that § 2.4 HmbPSchG is unconstitutional by citing the Senate’s comments on discriminatory exclusion from a privilege which it made in its judgment of 30 July 2008 in connection with the permissibility of smoking rooms (in that case with regard to discotheques; see BVerfGE 121, 317 <368 et seq.>). The order for submission also contains sufficient grounds to show that the question submitted for review is, as is required pursuant to Article 100.1 sentence 1 GG in conjunction with § 80.2 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), significant for the submitting court’s judgment. Where the submitting court is convinced – as is the case here – that the provision submitted for review violates the fundamental right guaranteed in Article 3.1 GG or a special principle of equality, it will be sufficient for a finding that the question submitted for review is significant for the submitting court’s decision if a declaration that the provision is unconstitutional would give the plaintiff in the original proceedings the chance of obtaining a provision from the legislature which was favourable for her (see BVerfGE 121, 108 <115> with further references). This is the case in the present proceedings since there are various ways in which the legislature could cure the violation of the principle of equality found to exist by the submitting court; in doing so, it could also decide to extend the privilege by allowing smoking rooms to be created in eating establishments. In this case, according to the constitutionally unobjectionable legal opinion of the submitting court, the plaintiff would succeed in the original proceedings.

C.

§ 2.4 HmbPSchG is incompatible with Article 12.1 in conjunction with Article 3.1 GG to the extent that the provision excludes those eating and drinking establishments which offer prepared meals or that have a license for such from the possibility of providing separate rooms in which smoking is permitted.

I.

The relevant provision (§ 2.4 HmbPSchG) does not have to be reviewed with regard to its constitutionality in its entirety, but only in respect of the legal question at issue in the original proceedings (§ 81 BVerfGG) (see BVerfGE 126, 331 <354>). This is the question of whether the operators of eating establishments (see § 1.1 no. 2 GastG), unlike the operators of drinking establishments (§ 1.1 no. 1 GastG), may be excluded from the possibility of permitting smoking in separate rooms of their eating establishments that comply with the statutory provisions. Thus at issue is neither whether a ban on smoking in eating and drinking establishments is permissible in principle (see on this BVerfGE 121, 317 <344, 356>), nor whether there is a need to make an additional exception to the statutory ban on smoking since there is a possibility that it burdens a certain type of establishment excessively (see on this BVerfGE 121, 317 <359 et seq.>). As is apparent from the question submitted for review, the real issue is whether the plaintiff was denied the benefit of an exemption provided by law – namely the possibility of establishing a smoking room – in a manner that was unconstitutional. These circumstances are similar to those which the Senate has already ruled on concerning the exclusion of discotheques from the permission to create smoking rooms granted to other establishments by the original version of § 7.2 sentence 2 of the Non-Smoking Act of the Land Baden-Württemberg (Landesnichtraucherschutzgesetz Baden-Württemberg ) (BVerfGE 121, 317 <368 et seq.>). The present case also involves a restriction through the ban on smoking on the right to freely practice an occupation and an exemption from such ban; exemption of certain eating and drinking establishments from the ban is only available if the requirements of Article 12.1 GG in conjunction with Article 3.1 GG are met (see BVerfGE 25, 236 <251>; 121, 317 <369>).

1. a) Since § 2 Abs. 4 HmbPSchG does not permit the creation of smoking rooms in the case of eating establishments of the type operated by the plaintiff, no exception to the ban on smoking laid down in § 2.1 no. 9 HmbPSchG can be made for such establishments. Notwithstanding its primary focus on the guests of an eating and drinking establishment, this ban on smoking encroaches on the free practice of an occupation of operators of eating and drinking establishments (see BVerfGE 121, 317 <344 et seq.>). The freedom to practice an occupation enjoys comprehensive protection under Article 12.1 GG (see BVerfGE 85, 248 <256>) and also extends to the right of individuals to determine the nature and quality of goods and services they offer on the market (see BVerfGE 106, 275 <299>) and, as a result, their right to freely choose their target audiences. Under this aspect, the ban on smoking impairs the freedom of operators of food and drinking establishments to practice their occupation since it deprives them of the possibility of determining themselves whether to allow guests to smoke in their establishments or to prohibit them from doing so. As a result, they may decide only in exceptional cases provided for by law whether they also want to offer the services and prestations of their establishment to guests who would like to accept that offer in combination with the possibility of smoking. It is not only made more difficult for operators of food and drinking establishments to proffer their offerings to smokers, but they are as a rule prevented from performing services, i.e. serving food and drink, for guests who do not want to abstain from smoking in food and drinking establishments (see BVerfGE 121, 317 <345>).

b) Provisions of law that govern the practice of an occupation must not only satisfy the requirements that arise directly from Article 12. 1 GG; they must also otherwise be in every respect consistent with the Basic Law and in particular with the general principle of equality in Article 3.1 GG (see BVerfGE 25, 236 <251>; 121, 317 <369>).

Depending on the subject governed and the differentiating elements, the limits imposed upon the legislature by the general principle of equality vary, ranging from relaxed compliance that is limited to a prohibition of arbitrariness to strict adherence to proportionality requirements (see BVerfGE 126, 400 <416>; 127, 263 <280>; established case-law). Differences in treatment always require objective justification which is appropriate to the aim of the differentiation and the degree of the unequal treatment. In this context, a single review standard applies under constitutional law that is based on the principle of proportionality and whose content and limits are not abstract, but can be determined solely on the basis of the differences in the facts and areas of regulation affected in each case (see BVerfG, Order of the First Senate of 21 June 2011 – 1 BvR 2035/07 –, NVwZ 2011, p. 1316 <1317> with further references). The legislature may be bound to a more stringent standard, depending in particular on the liberty rights affected (see BVerfG, Order of the First Senate of 21 June 2011, loc. cit.); the more the unequal treatment can negatively impact the exercise of freedoms that enjoy constitutional protection, including the freedom of practice of occupation or profession protected by Article 12.1 of the Basic Law, the narrower the operating latitude of the legislature becomes (see BVerfGE 121, 317 <370> with further references).

2. The application of these standards to the constitutional review of § 2.4 HmbPSchG indicates that the provision is not compatible with Article 12.1 in conjunction with Article 3.1 GG.

a) For the purposes of reviewing the differentiation between eating and drinking establishments on the basis of the principle of equality, it can be assumed that the legislature is bound to a more stringent standard because unequal treatment can negatively impact the exercise of freedoms that enjoy constitutional protection – in this case in the form of the right to freely practice an occupation protected by Article 12.1 GG (see BVerfGE 121, 317 <370>). Due to the distinctions in § 2.4 sentence 1 HmbPSchG, the operators of eating establishments are in contrast to the operators of drinking establishments prevented from creating separate rooms in which guests are allowed to smoke and are thus prevented from taking advantage of an exception to the ban on smoking in establishments which otherwise applies. As a result, operators of eating establishments cannot freely practice their occupation and make the offerings of their establishments also attractive for guests who smoke. It is obvious that this leads to considerable economic disadvantages, in particular for eating establishments which primarily serve alcoholic beverages and whose guests do not wish to abstain from eating, but who primarily come to such establishments for other reasons, such as to seek company and to talk to others.

b) This unequal treatment is not objectively justified. There is no sufficiently weighty reason for the differentiation.

aa) The fact that the distinction made in § 2.4 sentence 1 HmbPSchG was the result of a political compromise between the government parties in the Hamburg state parliament at the time of the enactment of the statute is by itself not a sufficient reason for differentiation. The necessity for making compromises so as to secure a parliamentary majority is a part of politics. However, it cannot in and of itself justify the serious disadvantages in relation to the exercise of liberty rights resulting from the unequal treatment of different classes of person addressed by the provision. Even if the legislature in a democratic state regularly depends on political compromises, it is also bound by the fundamental rights under Article 1.3 GG. Consequently, the principle of equality before the law pursuant to Article 3.1 GG is not satisfied simply by the existence of a political compromise; instead it imposes limits on the possibility of compromise.

bb) No objective factors are apparent which would justify the distinction between eating and drinking establishments in relation to the permissibility of smoking rooms.

However, it is not decisive for the constitutional review whether the relevant reasons for the statutory reform were expressly designated as such during the legislative process or even whether they can be inferred from the legislative materials. It is not the subjective arbitrariness of the legislature which leads to a finding that a provision violates the general principle of equality before the law, but rather the objective inappropriateness of the provision in relation to the actual situation it is intended to regulate (see BVerfGE 51, 1 <26-27>; 93, 386 <400> with further references.). On this basis there is no sufficiently weighty reason apparent for the differentiation.

(1) Thus the difference in treatment cannot be justified on grounds of health protection.

(a) This applies first of all in relation to the protection of the health of establishment employees, irrespective of the question of whether and to what extent a Land legislature is permitted to make this objective the subject matter of a non-smoking law without violating the system of competencies in the Basic Law (see on this BVerfGE 121, 317 <347-348>). In this respect, event the connection required between the legislative objective and the criteria for differentiation chosen by the legislature is lacking (see BVerfGE 124, 199 <220>; BVerfG, Order of the First Senate of 21 June 2011, loc. cit., pp. 1316-1317 with further references). In the present case such a connection between the protection of the establishment employees and the differentiation between eating and drinking establishments is not evident since employees work not only in eating establishments, but also in drinking establishments where they are required to serve guests in the smoking rooms permissible in such establishments thus exposing themselves to the dangers of passive smoking. There is nothing in the materials of the legislative process or elsewhere to indicate that establishment employees in smoking rooms of eating establishments could be regularly exposed to tobacco smoke to a greater degree than in smoking rooms in drinking establishments. Nor is it possible to discount the consideration of the submitting court to the effect that any intended protection of establishment employees could be more effectively achieved in a manner that was less burdensome for the operators of eating and drinking establishments if the permissibility of smoking rooms was made dependent on the guests being able to serve themselves.

(b) Furthermore, the differentiation cannot be justified by the protection of the guests’ health. That guests are not covered by the protection of the legislative provision is reflected in the very fact that they can endanger their health themselves through smoking. They are not compelled to protect themselves against the risk of endangering their health (see BVerfGE 59, 275 <278-279>; 121, 317 <359>). Instead, according to § 1.1 HmbPSchG, the objective of the Hamburg Act on the Protection from Passive Smoking is to protect the public against the health risks of passive smoking in public institutions. This limited goal of protection does not, however, justify the unequal treatment of eating and drinking establishments.

(aa) A witness at the hearing of the committee for health and consumer protection of the Hamburg state parliament put forward an argument to the effect that guests of eating establishments require increased protection because it can be assumed that their food is additionally contaminated through tobacco smoke (see committee printed paper (Ausschuss-Drucks ) 19/8, p. 17); however, during the legislative process this goal of protection was apparently not considered a relevant reason for the differentiation under review. Thus the head of the Ministry of Social Affairs, Family Affairs, Health and Consumer Protection at the time declared at a later committee meeting that it was completely irrelevant “from a health policy point of view ... whether one eats or not while one smokes”. This was “a question of taste, not a health policy question”. Eating while one smoked was no more or no less detrimental than drinking while one smoked (see Ausschuss-Drucks 19/9, p. 12). Nor is there anything which would indicate that there are solid scientific findings to support the assumption that guests of eating establishments require increased protection. The German Cancer Research Centre stated in its submissions in the present proceedings that there was no difference from a scientific point of view whether the hazardous substances contained in tobacco smoke were inhaled in a drinking establishment or in a restaurant serving meals.

However, even if it is assumed that the combination of eating and passive smoking results in particularly high pollution levels for non-smoking guests, this would not justify denying the operators of eating establishments the possibility, which is available to other establishments, of creating smoking rooms. If smoking is allowed only in completely separate rooms, the argument to the effect that there is a greater danger of passive smoking due to the specific nature of the operation no longer holds because guests can also have their meals in non-smoking areas. Risks to guests in non-smoking areas can be prevented through strict compliance with the requirements of § 2.4 sentence 2 HmbPSchG. According to this provision, smoking rooms must be structurally separated in a manner that excludes a danger to others caused by passive smoking (see BVerfGE 121, 317 <371-372>).

(bb) Finally, the different treatment of drinking and eating establishments cannot be justified on the grounds that by not permitting smoking rooms in the latter establishments, a larger number of people would be protected from the dangers of passive smoking. It is true that the number of persons at risk due to passive smoking also automatically declines with every reduction in the opportunity to smoke. In addition, the legislature is certainly entitled to support the prevention of this risk to health. However, this consideration cannot provide a sufficiently weighty, objectively justifiable reason for differentiation; for the necessary intrinsic connection is lacking between the differences found to exist and the provision embodying these distinctions. There is nothing to indicate that the menu offerings of eating establishments as compared with those of drinking establishments leads to a further increase in the health risks associated with passive smoking (see above <aa>). If the exclusion of eating establishments from the statutory privilege is intended to serve to keep the number of opportunities for smoking low, the distinction drawn would appear virtually arbitrary; for it would use a criterion for distinguishing between operators which was in no way connected with any such legislative objective of the legislature.

(2) Nor can any possible differences in the economic impact on eating and drinking establishments be a suitable reason for differentiation.

From the point of view of the legislature, the economic implications of the ban on smoking obviously did not play any role in the drafting of the wording of the provision. Obviously, it was assumed during the legislative process that insufficient “solid statistics... on the economic effects of the ban on smoking in eating and drinking establishments in Germany” existed (member of the Bundestag Harald Krüger, minutes of plenary proceedings (Plenarprotokoll – PlProt) 19/42, p. 2622). No distinction between eating and drinking establishments can be made on the grounds that the ban on smoking imposes a different economic burden on each one of them since there are insufficient facts to even support such an argument. The provision only concerns establishments that have the architectural possibilities of setting aside a room for smoking patrons; 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.

It is true that the Federal Statistical Office stated in its opinion on the proceedings which resulted in the judgment of 30 July 2008 that the ban on smoking enacted by the Land had probably led to a greater decrease in turnover in establishments that primarily serve alcoholic beverages (see BVerfGE 121, 317 <339>). However, it was unable to confirm its finding – which it anyway described simply as a “snapshot” of the prevailing situation – for the purposes of the present proceedings. Thus the Federal Statistical Office submits that turnover in establishments that primarily serve alcoholic beverages and food has decreased since January 2007 and that turnover development has been worse in establishments that primarily serve alcoholic beverages than in those that primarily serve food. It could not, however, say to what extent this is attributable to Land legislation regarding the ban on smoking. In addition, the 2008 assessment did not indicate whether the presumed special economic impact on establishments that primarily serve alcoholic beverages was not in essence due to the special nature and specific burdens on small establishments that primarily serve alcoholic beverages. What would speak in favour of this is the fact that in the case of the Länder covered in the assessment (Baden-Württemberg, Lower Saxony and Hesse), the non-smoking legislation at that time already provided for the establishment of smoking rooms in respect of eating and drinking establishments, but did not contain an exemption for single-room pubs where such rooms could not be created. For this reason, it does not seem improbable that the decrease in turnover determined for drinking establishments at that time relates primarily to those establishments which did not from the outset have the option of establishing smoking rooms and which consequently were particularly disadvantaged economically by the ban on smoking. Accordingly, there is also no finding in the Senate’s judgment of 30 July 2008 that drinking establishments were generally exposed to a greater burden in comparison to eating establishments. Instead the Senate based its decision on the specific implications for only a certain group of drinking establishments and affirmed the existence of particular economic disadvantages only for small establishments that primarily serve alcoholic beverages (BVerfGE 121, 317 <363>), which are represented in particular by “corner pubs” (BVerfG, loc. cit., p. 358) or “single-room pubs” (BVerfG, loc. cit. p. 364). The decisive criterion of differentiation was explicitly not alone the fact that such corner pubs or single-room pubs are drinking establishments. What was decisive was, in addition to the small amount of seating, the special structure of their clientele, namely a comparatively high number of smokers as compared with other types of establishments (BVerfG, loc. cit., p. 363), which would lead in the event of a ban on smoking to a decrease in turnover that could threaten their existence (BVerfG, loc. cit., p. 365). Already at that time it was not possible to determine – and this is even truer today – whether over and beyond this special kind of clientele which is characterised in particular by regulars who smoke, drinking establishments are impacted economically so much more seriously than eating establishments in general that this would justify complete exclusion of all eating establishments from a privilege.

In the material on the Act to Amend the Hamburg Act on the Protection from Passive Smoking, there are indications that the legislature sought to use the judgment of the Senate of 30 July 2008 (BVerfGE 121, 317) as a guideline for its own distinction between drinking and eating establishments. For example, when addressing the Hamburg state parliament, the CDU parliamentary group’s spokesperson for health relied on the fact that the Federal Constitutional Court “drew distinctions between establishments on the basis of whether they were eating establishments or primarily engaged in serving drinks”, but said that “unequal treatment should not occur, however, within the group” (member of the Bundestag Harald Krüger, PlProt. 19/42, p. 2622 <2623>). Representatives of the coalition partner GAL made similar statements before the committee for health and consumer protection (see Drucks. 19/4768, p. 3). This cannot, however, justify different treatment of the two types of establishment in § 2.4 HmbPSchG if for no other reason than that the cited judgment does not in any way state generally that the menu offerings are suitable distinguishing criteria for the purposes of allowing exceptions to the ban on smoking in eating and drinking establishments. The Senate relied on “the establishment’s being more directed towards serving drinks than meals” as simply one criterion among several different criteria for the purposes of identifying small establishments that primarily serve alcoholic beverages as a type of establishment particularly impacted by the ban on smoking (see BVerfGE 121, 317 <363-364>; above <2>). The difference in menu offerings was in this connection only used as one of several characteristics of differentiation, and was cited again in the description of the legislature’s drafting options (see BVerfG, loc. cit., p. 375) and the formulation of the interim provision (see BVerfG, loc. cit., p. 377).

II.

The distinction made in § 2. 4 sentence 1 HmbPSchG between drinking and eating establishments is a provision of law that governs the practice of an occupation, which, as a discriminatory exclusion from a privilege, violates Article 12.1 in conjunction with Article 3.1 GG. However, the unconstitutionality of the provision does not lead to its invalidity. The court is limited to determining that the current provision is incompatible with the Basic Law because the legislature has various options available to it for a reform (see BVerfGE 121, 317 <373-374> with further references). It is a matter for the legislature to decide whether it will eliminate the violation of the principle of equality determined through an extension of the privilege in § 2.4 HmbPSchG to eating establishments or through the enactment of a provision based on objective criteria or through another completely different prohibition (see BVerfG, loc. cit., p. 374).

III.

In light of the freedom of occupation of the operators of eating establishments there is a need for the Federal Constitutional Court to make provision for an interim solution based on § 35 BVerfGG until the enactment of the statutory reform so as to avoid further significant economic disadvantages (see BVerfGE 48, 127 <184>; 84, 9 <21>; 121, 317 <376>). For this purpose, and in conformity with the current legislative approach, (on this, see BVerfGE 121, 317 <376>), the court, by permitting smoking rooms, extends the current exception to the ban on smoking to those establishments that offer prepared meals or which have a license to do so under the Eating and Drinking Establishments Act. Accordingly, separate smoking rooms may also be created pursuant to the provisions of § 2.4 sentence 2 HmbPSchG.