I’m back from Berlin now, but thought you might want to catch up with part two of this summer’s German constitutional litigation over the smoking bans introduced by various Länder. You may recall that the bans in Baden-Württemberg and Berlin were ruled unconstitutional and must be applied with modifications pending legislative reform, because the scope of the exemptions was irrational and unfair; but that the Federal Constitutional Court reasoned that a complete smoking ban would have been lawful.

Well, Bavaria had enacted a total ban and unsurprisingly the challenge to it failed earlier in August. The court confirmed that a total ban was constitutional; the fact that beer and wine tents are temporarily exempted, until the end of this year (allowing smoking in tents during this Oktoberfest for instance), makes no substantial difference or bring in any element of irrationality or disproportion. It is still possible for bars in Bavaria to turn themselves into genuinely private smokers’ clubs – which will need to turn away passing trade – but this is open to everyone, so again that exemption, if it can be called that, does not create the kind of unfairness the Court saw in the details of the schemes laid down by Baden-Württemberg and Berlin.