The Federal Constitutional Court has not made it clear that the smoking ban in bars and restaurants is unconstitutional, but instead that the exceptions the state legislators have allowed are unlawful.
The Constitutional Court has given legislators plenty of decision-making discretion, including the opportunity for a total smoking ban in Germany's gastronomic establishments. That's because a basic right to good health for non-smokers certainly has a higher priority than the right to carry out one's profession and a smoker's right to do as they please.
The ban's exceptions have led to distortions in competition between pubs and bars. The temporary rules set out by the judges in Karlsruhe might possibly reduce such issues, but they do not free state legislators from making their own decisions.
The state parliaments are now called upon to use their discretion in order to impose a general smoking ban. Only a consistent approach will truly serve health protection measures and would be completely clear for both pub owners and guests. We must get rid of Germany's patchwork of different rules regarding smoking.
Marlies Volkmer is the SPD spokeswoman for the German parliament's committee for Nutrition, Agriculture and Consumer Protection. Translation by The Local.