The decision involved a case brought by bar owners in Berlin and Tübingen, and a club owner in Heilbronn, who contended that small establishments should be exempt from the ban because they don’t have the possibility to create a separate smoking area.
Owner of tiny Berlin bar “Doors,” Sylvia Thimm, was one of the bar owners involved in the case and says she is planning a big smoking party at her establishment Wednesday evening to celebrate her success, she told Berlin daily Berliner Morgenpost on Wednesday.
“Had there been a nationwide, general smoking ban in restaurants and bars, then I would have gone along with it because there wouldn’t have been the same distortion of competition that the separate smoking room option created,” she told the paper.
The ban was implemented on January 1, 2008 – though it was not enforced until July 1. Many German bar owners have openly flouted the law, complaining that it could threaten their livelihoods as revenues suffered. Several states have also reported half-hearted or non-existent enforcement by city officials.
The decision from the Constitutional Court in Karlsruhe states that current smoking ban rules are to remain in effect until the end of 2009, when new legislation will have to be drawn up. But the six to two ruling said the ban was “an especially heavy burden” and “unacceptable” for small bars and infringes on the freedom to carry out one’s profession because of the high proportion of smoking customers, the court said.
The ruling stated that bars allowed to let customers smoke again must be smaller than 75 square-metres and will have to visibly identify their business as a smoking establishment. Such bars will not be allowed to serve food and will have to deny entry to customers younger than 18-years-old.
Corner pubs that rely heavily on a drinking clientele and can prove “existential disadvantages” are also eligible for the exception to the law, the court said.
Other suits against the smoking ban await lower court rulings in several states, and judges in Saxony, Schleswig-Holstein and Rhineland-Palatinate have already nullified the law for single-room pubs if the owners themselves are serving drinks.
But states should strictly enforce the smoking ban in establishments that don’t meet the exception requirements because it remains a serious health risk, the court stressed. Nearly one in three German adults is a smoker and Germany was one of Western Europe’s last countries to institute a ban.
Chief justice Hans-Juergen Papier made clear, however, that the court saw public health as more important than the right to smoke or run a bar and would rule accordingly in any further challenges to the laws.
“A general smoking ban in restaurants and taverns would have more protection under the constitution than the right to practise one’s profession as a barkeeper or the freedom to smoke,” he said.