Two landlords and a smoker plan to sue again in federal trial court
After a referendum, in which a good third of those eligible to vote took part, brought Bavarians a ban on smoking in restaurants without exception last week, Ludwig Wolf, the landlord of the Munich music pub Bistro No., filed a lawsuit against the Bavarian government.2, Birgit Netzle-Piechotka, the landlady of the Asam Schlossl, and a smoker filed a lawsuit with the federal court. In 2008, the judges in Karlsruhe not only ruled that parts of the non-smoker protection laws in Berlin and Baden-Wurttemberg at the time were not compatible with the freedom of occupation protected by Article 12 (1) of the Basic Law, but also that non-smoker protection laws without exceptions were unlawful.
In its decision in this case, the First Senate amed that a general ban on smoking was not contrary to the principle of prevention because of the paramount importance of health protection. If, however, the legislature relativizes this protection goal – as has happened in Baden-Wurttemberg and Berlin – then even the Verhaltnismabigkeitsprufung leads to a different result. And in this, the legislators in Baden-Wurttemberg and Berlin had not sufficiently taken into account the special impact on landlords of one-room pubs. Whether Karlsruhe will significantly change this point of view is questionable. At least the decision at that time was not pragmatized by an eccentric like Paul Kirchhof, whose principle of half-division was later largely revised by a differently composed Federal Constitutional Court.