Smokers find their habitat increasingly reduced. A few decades ago it was still normal to light up a cigarette on the air bridge between Madrid and Barcelona and today there are (at least partial) bans on smoking in the street. One of the places where smoking bans have been most controversial and therefore also most difficult to enforce is in bars and restaurants.
What is the aim of anti-smoking laws?
The laws on smoking bans in public places, and therefore also in restaurants, aim to give non-smokers full protection. The idea is that everyone should be able to decide for themselves whether or not to expose themselves to the risks of smoking.
Smoking is therefore not allowed in restaurants either, and not in most bars either... right?
Well, even with this simple regulation, there is already uncertainty. Not only on the part of customers, but also on the part of restaurateurs. Do the laws apply throughout Europe or are they regulated differently at state or even regional level? And what exceptions are there? And what role do customs play in the implementation of existing laws?
Before the current smoke-free laws came into force, non-smokers had to look for non-smoking areas, now it is smokers who have to look for areas that are explicitly marked and designated for them.
Thus, with few exceptions, there is now a strict ban on smoking in restaurants. In case of non-compliance with smoking ban laws, both restaurateurs and customers can sometimes face heavy penalties in the form of fines.
Local authorities are responsible for deciding whether to impose fines for a breach of the law.
In Germany's North Rhine-Westphalia, fines can be up to EUR 1,000 for customers of a restaurant. If an establishment or a catering company does not enforce the protection of non-smokers, this offence can be punished with fines of up to 2,500 euros.
If the offence is repeated and a restaurant refuses to comply with the law, for example, it can even have its licence withdrawn.
Are there any exceptions to this law?
As a general rule, smoking is prohibited, but legally smoking e-cigarettes is still allowed in many hospitality establishments.
With the decision of the Higher Administrative Court of Münster in 2014 that e-cigarettes do not fall under the scope of the No Smoking Act, e-cigarettes can also be vaporised in restaurants.
The reason is that e-cigarettes simply do not fall within the scope of the No Smoking Act. This is because they do not burn tobacco, nor are the dangers of passively inhaling vapour from e-cigarettes comparable to those of smoke from traditional cigarettes. But the final decision on whether e-cigarettes can be smoked in a restaurant or pub remains with the landlord. And as landlords have to look after the interests of their customers and we are nowadays used to steam in restaurants being confined to the kitchen area, it is not unusual for them to impose a ban on smoking e-cigarettes as well.
Can a smoker assert his legal rights and smoke e-cigarettes in a restaurant?
The fact that a restaurant owner does not allow the use of e-cigarettes on their premises may be partly due to the fact that they themselves are not fully informed about the effects of e-cigarette vapour and have the usual questions on the subject.
Instead of educating themselves, they play it safe and ban vaping as well. On the other hand, they may also want to be considerate and respectful to their guests, especially non-smokers, who in turn consider smoking e-cigarettes and passively inhaling the vapour to be detrimental to their health as well.
Bearing in mind that it is the owner of the venue who has the final say, it is always advisable to use diplomacy when making sure whether the use of e-cigarettes is possible in a particular venue.
Since when has smoking in restaurants been banned?
The anti-smoking law dates back to 2007. In that year, at a time when vapour from electric cigarettes was already starting to become popular, the German government decided that the strict non-smoking protection laws should be applied to normal tobacco cigarettes with immediate effect. The Non-Smokers Protection Act came into force on 01.09.2007, but did not apply to e-cigarettes. This law contains, among other things, rules for federal institutions, for public transport and rules for the protection of minors. From then on, violations of this law became administrative offences.
Since the beginning of 2007, laws for the protection of non-smokers imposed for the first time a legal ban on smoking in restaurants. Some countries and regions in Europe allowed the establishment of separate smoking rooms, as well as other exceptions. In others, however, total smoking bans were introduced without exceptions. This was mainly for the protection of restaurant employees.
Restaurateurs were given several months to adapt to the smoking ban and, in the case of countries where exemptions were granted, to make structural changes, for example to provide a smoking room. Most of the smoking bans finally came into force on 1 January 2008. Since then, smoking bans have been in force in all European states, even if they have changed somewhat over time.
Even today, there is still no uniform smoking ban in Europe. Not even in the gastronomic sector. To give an example, in Germany, each federal state regulates the smoking ban independently.
The general smoking ban in restaurants and pubs in Germany only applies in North Rhine-Westphalia, Bavaria and Saarland. In the other Länder, exceptions apply to adjoining rooms in restaurants and to pubs consisting of a single room of less than 75 square metres. In these smoking bars only cold food may be offered and access is restricted to adults.
The interpretation of the exceptions, in turn, differs slightly between these federal states. Hamburg, for example, is the only state that imposes an airlock for smoking areas. In addition, smoking is only allowed in single-room bars and pubs if no food is served.
At least you can decide what to smoke!
In short, smokers are left with the option, while being respectful of non-smokers and restaurant owners, to go outside (at least for the time being) and enjoy ourselves here without disturbing others.
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