A Victory for German Smokers
Wednesday, Jul. 30, 2008 By THOMAS MARZAHL / BERLIN
Cheers and whoops resounded in small bars around Germany Wednesday, as the country's highest court gave smokers cause to light up for a celebratory puff. In a nationally televised ruling on Wednesday, the Federal Constitutional Court ruled unconstitutional a ban on smoking in small bars, and forcing state legislators back to the drawing board in their efforts to protect public health.
The court held that laws banning smoking in one-room bars in Berlin and in the state of Baden-Württemberg discriminated against owners who are unable to provide a separate room in which patrons can light up. The same laws allow larger establishments such as cafés, bars and restaurants to allow smoking, but only in separate and closed-off rooms.
German authorities have been under mounting pressure in recent years from the European Union and public health officials to clamp down on public smoking, but it took until the beginning of 2008 for bans on smoking in restaurants to take effect. Even then, the patchwork of rules and regulations hatched by individual states led to widespread confusion.
About one-quarter of all restaurants and bars in Germany are one-room establishments, and the German Hotel and Restaurant Association says the smoking ban has cost them as much as one third of their business. Many customers, the association claims, are simply staying home. Advocates of the ban counter that polls show more non-smokers are now going to bars and restaurants. (Note: If you lose 100 smokers, but gain 66 non-smokers who previously avoided your establishment, the loss is still one third of the business. The "polls" will still show that "more" non-smokers are going to bars and restaurants so the poll results are moot. -- j)
It remains questionable whether Germany's leaders have the political will to tighten bans on smoking. The court gave lawmakers until the end of 2009 to come up with new legislation. Until then, one-room bars of less than about 800 square feet can permit smoking, providing the under-18 are excluded, no food is served and a large sign outside warns non-smokers what awaits them.
While striking down the partial ban as discriminatory, presiding judge Hans-Jürgen Papier said the government was free to pass a total ban, since the protection of public health was paramount. But with a Federal election just 15 months away, it is unlikely that lawmakers will confront the country's formidable restaurant and tobacco lobby — or the nation's happy smokers.
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