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Smoking ban in Austria – This path will not be easy.

Author: Andre Wolf

Article image by NeydtStock / Shutterstock.com
Article image by NeydtStock / Shutterstock.com

The general ban on smoking in bars and discos came into force in Austria on November 1, 2019. The measure has met with mixed reactions, especially from local landlords. A particularly difficult case are the numerous shisha bars that are losing their livelihood as a result of the smoking ban.

The smoking ban has been a long-standing joke in Austria. The gauntlet began in 2009 when it was decided that smoking would continue to be permitted in establishments where a separate smoking and non-smoking area had been set up. Some implementations turned out to be questionable, for example when the food was first carried through the smoking area to get to the non-smoking area, or the non-smokers had to go through a smoke-filled room to get to the toilet or the exit. Employees were also not protected by this regulation.

A large number of Austrian innkeepers accepted the change and converted the bars into compliance with the law, only to be confronted with a final smoking ban by the government years later, namely in 2015.

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Through clever lobbying and another change of government, the innkeepers managed to get the total smoking ban abolished in 2017.
Schwarz-Blue II lifted the smoking ban in May 2018.

Only the collapse of the black-blue government led to another change and in July 2019 the general smoking ban was finally introduced in Austria and comes into force on November 1st, 2019.

The smoking ban includes rooms in which food or drinks are produced, processed, administered or consumed, as well as all areas available to guests in catering establishments and other public places, such as hotel rooms or hotel lobbies.

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Even though the smoking ban has only come into force for almost a month, many restaurants are already experiencing a steep drop in sales. Many complain about the complete absence of guests or the reduced consumption of drinks, as the combination of alcohol and cigarettes was essential for the guests.

Verdict on shisha bars

With regard to the problem of shisha bars, the new findings of the Constitutional Court have now been published. The Court's response to two applications from shisha bar operators who wanted to obtain an exception to the absolute smoking ban is clear. The Constitutional Court completely refused to consider the question.

The reason given by the Court was that the legislature was treating all catering establishments equally with the regulation and that the ban was objectively justified.

In the Austrian legal system, objective justification of the legislature requires a goal that must be in the public interest.
If smoking is banned in bars, the public interest lies in protecting the health of guests and employees.

If the legislature intervenes in a fundamental right by means of a law, in the case of a smoking ban the opponents argue with the fundamental right to freely conduct business, then this intervention must be covered by a public interest. In addition, the intervention must be appropriate and proportionate. The suitability is clearly present, the smoking ban leads to a clear improvement in the health situation of guests and employees. The proportionality is often difficult to determine, but when it comes to a smoking ban it can be stated that the achievement of better health for local guests and employees is achieved through a smoking ban, so that proportionality is given.

The counter-argument from the shisha bar operators is that the intention of shisha bar visitors is to smoke itself and not to consume food or drinks, which is why an exception should be made.

This proposal was clearly rejected by the Court on the grounds that a distinction between the various catering establishments cannot be achieved by offering shisha. Simply put, just because a bar puts shishas on the menu, it cannot obtain an exemption from the smoking ban.

Although the ban hits individual restaurants hard, the decision is logically understandable. If the exception were approved, every restaurant could circumvent the smoking ban by introducing hookahs. The consequence of this decision, however, is that at the turn of the year we can expect a massive wave of layoffs or closures of bars that used water pipes as their main source of income.

Complete ban on smoking

In Austria there are around 500 shisha bars that are threatened with closure and the dismissal of up to 10,000 employees.

However, some innkeepers are not lacking in creativity to circumvent the ban. So-called “smoking clubs” have already been formed, in whose premises the consumption of food and drinks is prohibited, but the purpose of the club is strictly limited to the consumption of hookahs.

However, the city of Vienna has already set its sights on these bypass constructions and has begun to penalize them in series.

From a health policy perspective, banning smoking in bars is seen as sensible and is in line with the trend in the European Union; almost all members have now decided on an absolute ban on smoking.

However, it should be noted that the “Austrian way” of spatial separation up to the ban, the lifting of the ban up to the final ban, has put the innkeepers in an unpleasant position and to this day the previous spatial renovation has not been completely replaced for the innkeepers . It will be exciting to see whether the Republic of Austria can be held responsible for the enormous damage to the catering industry and whether it can be held responsible under the law for damages.

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Author: Alexander Herberstein, article image from NeydtStock / Shutterstock.com

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were carefully checked by the Mimikama editorial team before publication. ( Reason )


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