A Victory for German Smokers

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Sean Gallup / Getty

Bartender Stefanie Thimm smokes at the Doors Music Pub in Berlin.

Cheers and whoops resounded in small bars around Germany Wednesday, as the country's highest court gave smokers cause to light up for a celebratory puff. In a nationally televised ruling on Wednesday, the Federal Constitutional Court ruled unconstitutional a ban on smoking in small bars, and forcing state legislators back to the drawing board in their efforts to protect public health.

The court held that laws banning smoking in one-room bars in Berlin and in the state of Baden-Württemberg discriminated against owners who are unable to provide a separate room in which patrons can light up. The same laws allow larger establishments such as cafés, bars and restaurants to allow smoking, but only in separate and closed-off rooms.

German authorities have been under mounting pressure in recent years from the European Union and public health officials to clamp down on public smoking, but it took until the beginning of 2008 for bans on smoking in restaurants to take effect. Even then, the patchwork of rules and regulations hatched by individual states led to widespread confusion.

About one-quarter of all restaurants and bars in Germany are one-room establishments, and the German Hotel and Restaurant Association says the smoking ban has cost them as much as one third of their business. Many customers, the association claims, are simply staying home. Advocates of the ban counter that polls show more non-smokers are now going to bars and restaurants.

It remains questionable whether Germany's leaders have the political will to tighten bans on smoking. The court gave lawmakers until the end of 2009 to come up with new legislation. Until then, one-room bars of less than about 800 square feet can permit smoking, providing the under-18 are excluded, no food is served and a large sign outside warns non-smokers what awaits them.

While striking down the partial ban as discriminatory, presiding judge Hans-Jürgen Papier said the government was free to pass a total ban, since the protection of public health was paramount. But with a Federal election just 15 months away, it is unlikely that lawmakers will confront the country's formidable restaurant and tobacco lobby — or the nation's happy smokers.

At the Dudenschänke bar in Berlin's Kreuzberg district, adorned with ads for beer, chocolate and, of course, cigarettes, owner Erika Müller-König was ebullient. "I'm so happy. I got goose bumps when I heard the court decision," she said. "My livelihood is now more secure. I might eventually have gone out of business" if the ban had been upheld, she said. "Seventy percent of my customers smoke," she added, lighting up a fresh cigarette.

Günter, a 66-year-old ex-smoker who quit three years ago and would only give his first name, dismissed the ruling as wishy-washy. "Either you allow smoking or you don't. Now it's up to the German parliament to decide the future."

At the nearby Petra's Holst bar, contented smiles mixed with complaints. "We smokers are being shunted onto a sidetrack," Marina Schneider, 48, complained. "It's like persecution. In my opinion, smoking should be permitted in bars. I don't want to spend my time here locked away in a smoky room at the back of the building."

Germany's decision expanding the freedom to light up stands in marked contrast to much of western Europe. Ireland was the first in Europe to ban smoking in pubs and restaurants in 2004, Italy followed suit a year later, and even France outlawed the practice in cafés and restaurants earlier this year.

At Petra's Holst, 55-year-old Bernd Schmidt expressed admiration for such Gallic resolve. "But we Germans are a bit bullheaded. And once winter rolls around — who wants to smoke a cigarette outside when it's minus 15 Celsius?"

While Germany's rate of smoking has gone down in recent years, more than 30 percent of the population still smokes, one of the highest proportions of smokers in Europe. Government figures show that some 140,000 people die in Germany annually from smoking-related illnesses, while 3,500 die from the effects of passive smoking.