German court decision gives Dutch smokers hope
31/07/2008
By RNW correspondent Laurens Boven
It is being hailed as a victory by German smokers. On Wednesday morning, the Constitutional Court in Karlsruhe rejected the smoking ban in restaurants and bars in the federal states of Berlin and Baden-Württemberg. The ruling will affect the ban in all Germany's federal states.
Never before has there been such interest in a ruling from Germany's Constitutional Court, whose packed public gallery included four television crews. The judge made quick work of the ban, giving the legislature until the end of 2009 to draw up new regulations.
Unfair competition
The judge objected to rules allowing large restaurants and bars to install separate smoking areas, saying that small operators not able to do the same would be disadvantaged. The argument is that smokers will take their custom to premises where they can indulge their habit. Local bars had complained about major losses in turnover following the introduction of the ban. In a case brought by three bar owners, the judge has now ruled that if the law makes exceptions for large premises, similar concessions must be offered to small ones.
Owners of small bars will now be able to decide for themselves whether to allow smoking on their premises or not. However, the judge imposed certain conditions. These include making it clear at the entrance that smoking is permitted, and, if smoking is allowed, that underage customers will be barred from entry and that no food will be served.
New legislation
The court's ruling will be enforced with immediate effect. Germany's ZDF television station showed the news being greeted by cheers from the customers of a small bar in Ludwigsburg. Ashtrays were then produced and the first cigarettes lit up. The owner immediately started putting up 'smoking permitted' notices on the door.
The government now has two possibilities. It can introduce more exceptions to the ban which will serve the interests of smaller premises, or it can impose a total smoking ban on all premises without the possibility of separate smoking areas. Both solutions would do away with the problem of unfair competition. A total ban will mean the return of a difficult issue for German politicians, just when parliamentary elections are looming.
The Netherlands
The parallels between the situation in Germany and that in the Netherlands are striking. Under Dutch legislation, bars and restaurants also have the possibility to construct separated smoking areas. However, just as in Germany, smaller establishments are unable to take advantage of the rule. This has led a number of owners of small bars in the Netherlands to launch challenges to the ban in the courts.
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