Two years ago now, I wrote that Bavaria’s ban on smoking in public buildings had been upheld by the German Constitutional Court. But it, or a new version of it, has recently been challenged again – and again upheld.
Just before the Court upheld the Bavarian ban the first time round in 2008, it had ruled unconstitutional less strict bans in Berlin and Baden-Württemberg, saying that while a total ban could be justified there was no logic or fairness in the exemptions those two states had granted. The Court gave guidance about what types of exemptions would survive scrutiny when the states adopted new laws. And it’s that guidance that the Conservative-Liberal coalition (yes, that type of coalition) in power in Munich since late 2008 seized upon when it decided to relax the smoking ban as from August 2009. Many thought the conservative Christian Social Union’s backing for a total ban helped lose it votes, and its majority, at the 2008 election.
But in response, a public initiative forced a referendum on the issue last month – and a surprising majority voted to reinstate a total ban (albeit on a low turnout). It’s that new law that was challenged this time.
But the Federal Constitutional Court was having none of it – it ruled the challenge inadmissible (in German only; here’s a Googlish version), partly on the technical basis that it was premature (having been made before the new law was officially promulgated) but also on the basis of its Berlin/Baden-Württemberg ruling. A total ban engages no fundamental rights.
As for Berlin, Der Tagesspiegel reports that its government came back after the 2008 ruling with a new law containing defensible exemptions – and that the law is being variably enforced to say the least, some districts only reacting to complaints and others devoting no staff to the task. In Baden-Württemberg too, the new law contains permitted exemptions. It’ll be interesting to see whether what’s happened in Bavaria spurs calls for a ban at federal level – or more likely, public initiatives in other states. If I lived in Berlin, I’d certainly want something done about its ridiculous unenforced non-ban.
There is no reason to have smoking bans in private venues
Owners can hang a sign on their doors.
‘This is a smoking venue.’
‘This is a non-smoking venue.’
This simple solution gives owners and customers choices.
Yes, if any bars choose to be no-smoking places. I remember that few did before the ban, because of their fear that all the smokers (who you’d think were the majority from the way some people are more worried about their custom than anyone else’s) would go elsewhere.
I remember, as a non-smoker, having no choice at all before the ban (except to stay out of pubs altogether). I’m afraid your laissez-faire approach resulted in the tyranny of the minority. I’m sorry, too, that the only thing that seems to work is for the majority to impose its will on smokers. But it’s much better than what we had before.