Constitutional Court Judges tilt non-smoker ban in Germany

German politicians find smoking regulations difficult. Over two decades there were discussions about smoking bans, tobacco taxes and the health toll of cigarettes. This year all federal states have established similar smoking bans for public places, pubs and restaurants. But the regulations are in part unconstitutional. A loose smoking regulation will probably follow. It is a success for smokers, but a health setback for all people. A look on smoking regulation from WAVE author Natascha Verbucheln.

It is Friday evening, party time in Germany. Sarah Voigt, freshman in business economics at Düsseldorf University, has looked forward to it the whole week. The 18-years old girl walks the short distance to a local pub at the corner, carefully dressed up, smelling of her strawberry shower gel and a flowery perfume. Inside the small room she takes a deep breath. For several seconds she is totally still and a little smile plays on her lips. Then, suddenly, she grimaces: „I should have known it. Fresh air inside a pub seems impossible in Germany!“ The cause for Sarah’s change of mood is a group of teenagers, standing next to her and smoking. Sarah turns around and leaves the pub: „Smoke stinks. I don’t know why I even bothered to take a bath, no one will realise it while someone is smoking here. “

German people smoked almost 69 million cigarettes in 2005. The blue fog troubles non-smokers: „At the disco for example it is already hot and stuffy because of all the dancing people, but with smokers it’s nearly impossible to breathe. Besides, it is dangerous. Often, burning ash meets bare flesh. That is very nasty“, remembers Sarah. The 18-years old girl does not smoke and fears the health toll. „Everywhere and every time there is so much fog, you have to get ill. I sometimes fear getting ill myself. My mother died of cancer. Smoking is a serious threat.“ Sarah’s fear is not unjust. Every day more than nine people in Germany die from complications of passive smoking.

Smoker legislation: Health vs. Freedom?

To reduce these statistics, Germany struggled almost two decades. A strong tobacco industry and a high tobacco tax income have hindered smoking restrictions so far. This year all 16 federal states have forbidden smoking in pubs, restaurants and discos. Sarah was happy, but Heinz Kipper, barkeeper, wasn’t thrilled about it: „I can`t bar my guests from smoking because that would be my financial ruin. More than half of my regular guests smoke and no non-smoker has ever cared about it. I do my job for nearly 40 years, but a smoking ban would certainly mean my end as am entrepreneur.“ However, within a few days smoking clubs were arranged and – when possible – pubs offered separate rooms for smokers. Smoking in pubs with a smoking ban – in Germany it is possible. But by now, the Federal Constitutional Court has decided that these laws are unconstitutional because they discriminate against small pubs or discos which cannot establish separate rooms for smokers. The federal states have to modify their smoking bans until 2009. Until then, the current smoking restrictions are feeble and useless. The German smokers, about 25 percent of the whole German population, have won once again.

When you look beyond the German boundaries, you realise one common aspect: The differences of non-smoker protections. There are many countries which already have a smoking ban for public places or buildings. A good example is Ireland. Since 2004 smoking is banned in Irish pubs, public transports and buildings. Even at work you cannot light a cigarette anymore. In other countries – for example Greece or Luxembourg – protection of non-smokers does not exist at all. Germany did hitherto limp behind, too. Two years ago Germany still fought a European directive from 2003 tooth and nails. According to this directive tobacco advertisements should be forbidden on the Internet, on radio and on paper. The strong opposition of the tobacco industry, advertising agencies and cinema operators assumed the risk of extensive loss in sales- and addressed German government. The directive would be a severe restriction of freedom and exceeds the responsibilities of the EU. Germany filed a law suit and lost the case. A nationwide smoking ban failed in 2006, but in June this year all federal states have established similar smoking regulations for pubs, restaurants and discotheques.

It seemed to be a big step forward – until now. The laws are unconstitutional and discriminate against small pubs where a separate room for smokers cannot be established. Therefore the federal states have to reconsider their regulations. There are two possibilities: A general smoking ban without any exceptions like smoking clubs or separate rooms is the healthiest and most reasonable way, but this not likely to happen. The Federal Constitutional Court has already favored a more liberal ban: Pubs with only one room, guests over 18 years and without food can now allow smoking indoors. Some states have announced to loosen their laws this way. Sarah is frustrated: „The politicians have realised how dangerous smoking is, but now they back down again. Why risk yet more lives because of this stinky fog?“

The copyright is subject to creative commons (fotofill: ashtray and paul j. s.: ashtray on table).

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