I’m afraid you need to read German in order to read the recent judgment of the Federal Constitutional Court in which it has ruled unconstitutional smoking bans in Berlin and Baden-Württemberg. There is also a press release which explains the judgment in slightly less dense German, and a Deutsche Welle article in English which gives the background. The Länder have competence in this area since the Federal legislature the Bundestag has not acted – the DW article refers to criticism of the government for leaving this issue to regional governments.

The first thing to make clear is that the judgment does not mean smoking can’t be banned in German pubs: in fact, the court made it clear that Berlin and Baden-Württemberg could lawfully have brought in a total ban on smoking in bars and restaurants. Only Judge Masing thought that would be disproportionate (while dissenting from the ruling overall). So this isn’t the great victory for the smoking lobby that it might at first appear. What the court has decided is essentially that the exemptions contained in these laws are not rationally connected to the policy aim in that they do not properly protect non-smokers or workers, and that they are unfair to small one-room pubs and to discos. The Baden-Württemberg legislation for instance entirely exempted beer tents, those emblematic German institutions, an exemption the court couldn’t understand, as people need protection from smoking there as much as anywhere. It also permits smoking “annexes” – smoking rooms sealed off from the rest of the pub, but does not allow discos to take advantage of the exemption. It was argued successfully that that approach is unfair both to small, one-room pubs – how can they provide a separate smoking room? – and of course to discos. By a 6-2 majority the court held that this regime of exemptions was disproportionate “in the narrow sense” and so contrary to article 12 of the Constitution (the second sentence in effect governing regulation of business) read together with the article 3 guarantee of equality before the law.

The laws remain in force until the end of 2009, but the court has read the provisions down to avoid unfairness in the interim, and has given the Länder clear guidance on the legislative options open to them, which effecively boil down to (a) a total ban in all pubs and restaurants or (b) a partial ban exempting at least some one-room pubs and treating adult-only discos the same as other establishments. This is an approach ministers say they’d like from the courts in this country – but I wonder if they’d really like the extreme intensity of this kind of judicial review.