German smoke ban to be partially overturned, court rules
30 July, 2008
Small pubs to be permitted to allow smoking
Germany is to be forced to reverse its ban on smoking in small pubs, the country’s top constitutional court has ruled.
The court said a ban on smoking in small one-room bars in two states – Berlin and Baden-Wuttermberg – was discriminatory as similar pubs that had extra rooms were legally allowed to offer one for smokers.
The situation differs to that in the UK where a total smoking ban covers all public places, meaning a level playing field for all businesses.
Smokers should also be permitted to light up in one-room venues, the court said.
The ruling is likely to set a precedent for other German states.
In an emailed statement, the court said: “Lawmakers could totally ban smoking in all bars and restaurants. But if they decide to allow exceptions for some barkeepers, then these exceptions must also apply to small pubs which are most hit by the ban.''
The ruling upheld a complaint lodged by the owners of two small bars in Berlin and a disco operator in the southwestern state of Baden-Wuerttemberg, who argued the ban had cut their revenues by more than 30 per cent.
Hans-Juergen Papier, the court's president, said the law would need to be redrawn by the end of next year.
He said until then, smoking should be permitted in bars and restaurants of less than 75 square metres that lack a separate smokers' area.
About one third of Germans smoke, which is one of the highest rates in Europe.
Readers' comments
I am an ex smoker through choice (after 50 years) but not anti-smoking. Apart from the flawed evidence provided by the anti-smoking whimps who have contributed to your article, they clearly want to impose their rights of choice over others, come what may. Smokers pay taxes and did help to fill pubs (else why so many current closures) so that non-smokers could and can enjoy pubs and restaurants while they still exist. Compromise and courtesy rather than conflict is now needed to accommodate both elements of the community and prevent the jobsworths from turning this into a police state - and, of course, to keep the pubs we still do have in business. Our government is run by low intelligence binary-footed bigots and it is refreshing that the Germans (who would have thought it) are showing intelligence in a delicate matter to benefit the majority. Too many modern British whimps are emerging because they have not been exposed to a bit of dirt or risk - hence no resistance or knowledge and a plethora of modern diseases. If the non-smokers want clean air, why do they go to a pub in the first case (all those horrible sweaty bodies), why don't they drink in the pub garden and, finally, why do they frequent a pub with a log fire?
Wendy - so your heart problems are caused by other people and not in the slightest by anything you eat and drink, nor any other lifestyle choice, nor indeed anything hereditary? I'm sorry that you have suffered ill health, but to blame others (and in upper case - the equivalent of SHOUTING) is an indication of bigotry, selfishness and ignorance.
I have made this suggestion before. One of the tactics of the anti-smoking industry is to create conflict between bar owners. This is a way of getting around it. Decide on a fixed number of smoking licences; say 40% of the current number of bars. Allow bars to bid for these licences every few years. The laws of the market will ensure all bars are equally profitable. Some of the money raised from the bids could go towards air cleaning appliances. The ordinary non-smoker (the non-fanatic) will enjoy cheaper beer in the non-smoking bars. Nearly everybody's happy. From reading this publication for the past year, I actually know the pen-names of those who won't be. Has anybody got a view on this. I think it's quite neat - probably got it from Freakonomics or similar.
Rollo - Whilst your observations are correct there can be no attempt at introducing a blanket ban until at least 2010. This will most certainly fail for several reasons. It must be introduced at a state-by-state level by unwilling local politicians who have previously been roasted by the voters over this issue (e.g. Bavaria). A prior attempt in 2006 by Germany's federal govt was ruled unlawful and rescinded within two weeks. Germany has no equivalent of our State-sponsored 'charity' ASH to spread lies and misinformation at the taxpayer's expense. The Germans are sticklers for detail and fact. They don't like being 'nannied' and won't stomach propaganda & junk science. German publicans have already had a taste of the severe damage smoking bans wreak on pub trade. They now have 18 months to prepare for the possibility of another attempt. If it ever comes they will be ready.
There seems to be a lot of misunderstanding over this ruling. The German court didn't rule that indoor bans on smoking in public places are illegal. It said that exemptions (in this case, separate smoking rooms) might be illegal if they penalised small pubs that couldn't offer the facilities. The court made clear that a blanket ban would be legal. It actually makes it more likely that all German states will introduce a blanket ban, unless some can find a new system of exemptions which was lawful.
Deutschland ueber alles!!!!
Can't agree with Bian, sold my pub at the end of 06 as 90% were smokers. Love pubs and it makes me sad to see them dieing. Whatever is wrong with defining areas and allowing choice. At least there will be someone else there when you get to......(and if its still trading) your local! Winters round the corner,I do hope that some fires might still be smoking..
Wendy: I am both shocked and surprised that a GP could have made such a statement. There is 'no' proff of this and if there was I'm sure you could rush off to a court to sue the perpetraitors! Eric & Co: You are destined for a life in the 21st century 'new government'. Do what you want to whoever you want without the slighest consultation with them! I have always considered that people like my former reletives fought to make this country resonably free for choice. Looks like we have a new realm of people who are both selfish and above reproach. I am also shocked that people running licensed establishments allowed the blanket smoking ban to happen. I was told by my MP that people were consulted and yet I have to find a single one who was. Remember when alcohol is banned and we have 'I-robot's' running things how we all let everyone down. Michael
Brian & Eric - You antis amaze me. Most larger pubs in Germany are non-smoking with a seperate, sealed-off area for smokers. Smaller bars cannot divide their floorspace and were going out of business without their smoking customers. You could still have your pick of German pubs to drink in smoke-free. But that's not good enough for you - you must have them all. You would rather see them all closed down than allow any exemption that allows smokers to enjoy their habit. What petty, mean-minded and spiteful people you are.
Maybe this ruling by the Germans may be an opening for a partial smoking ban instead of a blanket one, here in the UK. Possibly wishful thinking on my part! As for this present ban,the sign on the pub door should read "This IS a smoking pub", allowing NON Smokers use of pub that is bread and buttered by the smokers.
Wendy. Did your GP actually state that your heart problems were due to passive smoking? He'd be the first if he had. Whilst I sympathise with those who do not like smoking or have conditions that smoking aggrevates (just like other conditions affect many in the country but are not banned), I do think that choice should be restored to cater for everybody. You could then socialise in smoke-free establishments and smokers and non-smokers could socialise where they chose. What is wrong with having freedoms for all and catering for the entire society? I though that was what a democracy was all about. The smoking ban was a huge backward step in time, and prohibition is not and will never be the answer
I HAD HEART PROBLEMS DUE TO PASSIVE SMOKING OTHER PEOPLES ADDICTION TO NICOTINE HAS RUINED MY LIFE ! THE SMOKING BAN IS THE BEST THING ANY GOVERNMENT HAS DONE FOR THIS COUNTRY ! !
This is fairly good news.When more sanity returns to this planet I expect even more of these supposed tobacco control bigots will be put in jail.But that just costs decent society even more than they have already cost us (and health care).They should also be sued for the billions that they have cost.
That's the way forward. CHOICE! And make it part of the legislation that pubs that do allow smoking must have suitable signage. In Montana USA the pubs there that opt to be smoking must have a large black and white sign outside saying: THIS IS A SMOKING ESTABLISHMENT...NO PERSONS UNDER THE AGE OF 18 ADMITTED Similarly in Copenhagen where small bars can opt to be smoking bars and have to put signage up to whit. Good news indeed and good to see common sense from Germans ;)
Maybe we should have lost the war , our Goverment now want to control our lives , without debate , and brace yourselves for the next wave of measures to crush the pub industry , the montoring of alcohol . This is not the free country we used to have !!
Just hope they bring it in over here. At last we will have a place where we can guarantee not to find the anti-smokers. The whole point about this is that the German court has decided to allow choice, something that our anti-smokers want to deny us. Democracy does work, just not over here.
Did anybody try to take our government to court? no I didn't think so. All talk and no action in the UK as usual. I am a smoker but do not have a pub........
Britain ought to join the EU so that we could have the same laws as Germany.
Brian I feel very sorry for such a narrow minded soul such as you as you obviously have no compassion for anything you don't particularly like. For 15,000,000 people a cigarette is part and parcel of everyday life-for you it is obviously not, but would you like something that you really enjoyed taken away by a law based on scientific junk and lies? Smoking rooms & non smoking rooms, that is the answer-or- smoking pubs and non smoking pubs, then no one can complain. Out of interest Brian, just how many pubs would now welcome smokers in asap?
Let's hope the British Government don't lose their determination to rid indoor places of entertainment/relaxation of the scurge of nicotine and toxic fumes. It's still a disgusting habit wherever you live.
At Last Someone has seen sense Lets hope the British Goverment Will Follow this move
I go to Cologne on business on a regular basis and the German smoking ban is so much fairer than our system and it seems to work so well. Trust our government to have to go over the top as usual making all our lives a misery.
This will only set a precedent if publicans in other EU countries do the same. This autumn an EU green paper will be tabled to introduce a blanket ban across europe. Unless we learn form our past mistakes and fight against it. Bans create an uneven playing field, whether like the one in Germany or our blanket ban. small bars lose out in Germany(until now), wet-led/landlocked bars lose out in UK.
If the German Government has any sense they will simply redraft the legislation to remove any exemptions. A total ban is absolutely the right answer.
SOME COMMON SENSE PREVAILS!! THERE NOT PREPARED TO RUIN THERE PUBS AND PEOPLES SOCIAL LIVES BECAUSE ONE OR TWO PEOPLE IN GOVERMENT IN THIS COUNTRY DONT WANT PEOPLE TO GO OUT AND DONT WANT PUBS, IF ONLY WE HAD A GOVERMENT WITH COMMON SENSE. THIS COUNTRY HAS GONE TO THE DOGS.LETS HOPE THAT SOME THING POSITIVE COMES OUT OF THIS MOVE .
IT SHOULD OF BEEN FROM THE START THEY SHOULD OF MADE SMOKING PUBS AND NON SMOKING PUBS EVEN STAFF COULD CHOOSE WHERE THEY WORKED THEN OR IS IT VOTING TIME AGAIN IN GERMANY ?
NOW LETS CHANGE THE LAW HERE !!! NUFF SAID!!!
This appears to be the use of common sense in Germany. Unlike our own political bods - they seem to have grasped reality - and even expanded on it. So is this then a European country with a bias and privilege that is not allowed in the rest of Europe? Seems like discrimination against British pubs and British people to me... where German pubs are allowed to compete for European tourist trade on an un-level playing field.
Oh boy! Isn't this going to be commented on...................................
Common sense rules! And to think that I always thought it was the Germans who were control freaks. they've got nothing our jobsworths. Have all of you publiicans who feel that the smoking ban has adversley affected your business considered clubbing together to raise funds for an appeal to The European Court of Human Rights. I've no doubt that a smart lawyer would find good cause to do so if it were worth his while
As usual one rule for Europe,one rule for UK,I'm sure we like being dictated too,why did we beat the Germans in the war,only to be run by a Germified Europe.We should have a controling stake in how the European Union is run not forever rolling over.Has anybody else noticed when we're on holiday in Europe how many rules that we have to follow are Broken? (Smoking behind the bar,various Hygiene laws,not to mention blatant H&S issues) Come on Goverment stand our ground it's suppose to be a level playing field,It's not surprising that it's cheaper to Holiday abroad when they don't have the same level of RED tape to contend with.As usual Rip Off Britain cowtows to Europe?
So the germans can do it.. why cant we? See the choice? Go On Pete R - no doubt you've got some "I told you so's" to hand out after people wouldnt listen to your previous german ban blogs....!