German court rules smoking ban unconstitutional (Roundup)

Jul 30, 2008, 14:25 GMT

Karlsruhe, Germany - Germany's semi-ban on smoking in bars is unconstitutional, because tiny one-room taverns cannot set aside space for patrons who want to smoke, senior judges ruled Wednesday.

The Constitutional Court ruling cheered publicans and the tobacco industry in Germany, where about one third of adults smoke, and where politicians have been wary of the rest of the West's battle to wipe out the habit using total bans.

In unison, the 16 states have passed legislation in the past year that only allows smoking in separate smoking areas at cafes and pubs.

All over Germany, the men who nestle for much of the winter in dimly lit bars that reek of tobacco and beer muttered that the rule was a dictatorial attack on individual liberty.

Publicans who operate tiny bars, often in converted shops, challenged the law, saying it discriminated against premises which are too small to partition and can no longer welcome smokers at all.

The Federal Constitutional Court in Karlsruhe, southern Germany, agreed, directing the states of Baden-Wuerttemberg and Berlin to amend their smoking-ban legislation by the end of next year.

One of the three plaintiffs was Sylvia Thimm, 45, who runs Doors, a hole-in-the-wall Berlin pub. 'I'm delighted,' she said. 'My business nearly failed because most of my patrons smoke. Tonight we're going to celebrate.'

Until it is altered, the no-smoking rule is to remain in effect, but it will not apply to one-room bars with less than 75 square metres of floor space provided they exclude anyone under 18.

Other states said Wednesday they too would tolerate smoking in small bars till the law is changed.

By a 6:2 margin, judges said an out-and-out ban would have been perfectly constitutional, but the exemptions in the legislation were not, because they were discriminatory against the smaller bars.

Chief justice Hans-Juergen Papier said legislators were entitled to 'protect the public from dangers to health, and the legislature can consider passive smoking to be such a danger.' But any exemptions must benefit all taverns equally.

That inspired fresh appeals for Germany to follow Italy, Ireland and other nations that have outlawed barroom smoking altogether.

Sabine Baetzing, the federal commissioner on drugs, said, 'This verdict is against the exemptions.'

In Berlin, federal authorities voiced relief that smoking bans were constitutional and said the amendments would be up to the 16 states.

Out of Germany's 187,000 premises serving food and drink, 60,000 to 80,000 have their guests in a single room, the German hotel and restaurant federation Dehoga said. The smoking ban has been blamed by many operators for a decline in sales.

In the first half of 2008, German beer sales declined 1.3 per cent to 44 million hectolitres, government statisticians said.

Tobacco tax in Germany raises 14 billion euros annually for the government. Berlin says smoking costs the economy 18.8 billion euros annually, including hospital treatment of lung disease, welfare for lung patients and lost production when smokers fall sick.