German pubs win battle to overturn smoking ban

Two tiny pubs in Berlin won a landmark victory when Germany's highest court ruled today that small bars and restaurants should be exempted from regional smoking bans.

The Federal Constitutional Court in Karlsruhe said the bans were unconstitutional because they "seriously interfered" with the livelihoods of these businesses.

Smoking bans came into effect individually in most of Germany's 16 federal states at the start of the year.

The fact that the laws allow bars and restaurants to create closed-off smoking areas in effect put small establishments that lacked the space for these at an unfair disadvantage, the court said.

The ruling upheld a complaint by the owners of two small bars in Berlin and a nightclub operator in the southwestern state of Baden-Wuerttemberg, who argued that the legislation had put their businesses at risk.

Presiding judge Hans-Juergen Papier said the rules must be redrawn by the end of 2009 and that, until then, smoking must be allowed in bars and restaurants of less than 75 sq metres (800 sq feet).

But he also made clear that his ruling would not prevent legislators imposing a blanket smoking ban in all public spaces if they chose to do so.

Wouda Kuipers, head of the German cigarette makers' lobby DZV, hailed the ruling as a victory against the marginalisation of smokers and added: "We are warning against a growing culture of bans and regulations in Germany."

Around a third of the adult population smoke in Germany, where lighting up became a badge of freedom and tolerance after Hitler's Nazi regime cracked down on the habit in the 1930s.

An attempt by the federal government to introduce a nationwide ban failed in 2006, and many bars and restaurants in Berlin flouted their regional ban when it came into force in January.

As most of Germany's regional states have smoking laws similar to those of Berlin and Baden-Wuerttemberg, the ruling is likely to set a precedent for the other states.