Smoking bans in Germany – Jurisdiction

Laws are theory, jurisdiction is practice. And there have been some interesting court decisions regarding the German smoking bans.

In March, the State Constitutional Courts in Rhineland-Palatinate and in Saxony ruled that bars with just one room (thus no possibility of separating a smoking area) are provisionally exempt because they could face bankruptcy while waiting for the court's final decision. But this applies only to venues without employees.

In April, an Administrative Court in Schleswig-Holstein came to the same conclusion in an individual case, the State Administrative High Court recently expanding this to a venue with two rooms and one employee. All similar bars in Schleswig-Holstein can refer to these specific cases and ignore the ban.

Shisha bars are provisionally exempt from the smoking ban in Saarland, according to a verdict of the State Constitutional Court in March.

The funniest verdict came from an Administrative Court in the above mentioned Schleswig-Holstein. It ruled that a bar owner does not have to abide by the legal requirement to put up no-smoking signs. The judges just said: A no-smoking sign is not an effective means to enforce a smoking ban.

There were also a couple of attempts for judicial review by bar owners and individual smokers that failed. And Bavarian smokers' clubs that stood the test of law.

Why do most of these decisions have an interim character? Because the most important and powerful of all German courts, the Federal Constitutional Court in Karlsruhe, will rule in a few weeks, probably on July 30. Everybody is waiting for its position on the no-smoking laws of two states.

It is widely expected though unsure that “Karlsruhe”, the “Red Robes”, will declare parts of these laws to be unconstitutional. Yet it might be possible that they base this judgment on the uneven competition between one-room bars without the possibility of separate smoking areas on the one hand, and larger venues which have this possibility on the other. In this case, leveling the playing field could also mean abolishing smoker rooms altogether, at least as a legislative reaction.

Update: Also in Berlin, shisha bars (at least those that don't serve alcoholic beverages) are exempt until the final decision.