A small victory for common sense, but the battle goes on

A small victory for common sense, but the battle goes on
Saturday August 2, 2008
A ruling by a top court in Germany offers some hope to smokers, but it could yet end in tears. Joe Jackson reports.

You may have heard that a couple of days ago, the Federal Constitutional Court in Germany declared smoking bans unconstitutional and ordered them to be partially reversed. Unfortunately this is not quite the case, though the ruling is a provisional victory of sorts.

The situation is this:

(1) The Federal Government conceded the power to ban smoking to the 16 individual States (Lander). They all came up with different laws, which mostly went into effect in January 2008. Most of them, including the city-states of Berlin and Hamburg, allow separate smoking rooms (so long as they are not the ‘main room’). In Bavaria private clubs are exempt, so thousands of venues have just turned into ‘private clubs’.

(2) There has been great resistance to bans – not only bars etc defying the law but some city and state officials saying they won’t enforce it. Enforcement in Berlin has been pretty lax. Nevertheless business has gone down by at least 30% in nonsmoking bars, and unlike in, say, the UK, where the mainstream media and politicians declare the ban a great success even though pubs are going out of business, in Germany everyone seems to know about it. Thousands of customers are going across the borders to Poland or Belgium, where bars still allow smoking. Public opinion also seems to have been on the side of the small bar owners who have been most affected.

(3) A group of small bars, mostly from Berlin, forced a Judicial Review, on the basis that the ban was unfair on bars which were not able to have a separate room. The Constitutional Court has just ruled in their favour. BUT …

THE DOWN SIDE:
(a) The ruling is basically that there should be a ‘level playing field’: either let the small bars allow smoking or have a total ban everywhere. Thus this can be seen as opening the door to an even worse situation later.
(b) The antismoking fascists now have another year and a half to bombard us with propaganda and push for a more comprehensive ban.

THE UP SIDE:
(a) The states now have until the end of 2009 to re-write their laws, and until then, smoking is allowed.
(b) The rights of bar owners and the fact that smoking bans hurt business, have been officially recognised.
(c) It demonstrates that action can make a difference.
(d) We have another year and a half to fight the antismoking fascists.

In the meantime, I’m off to the corner pub for a beer and a fag.

Joe Jackson is a writer and musician
http://www.thefreesociety.org