18.06.2019
In mid-June 2019, the Constitutional Court rejected (among other things) an application by the Vienna provincial government from 2018 to repeal certain provisions of the Tobacco and Non-Smoker Protection Act (TNRSG).
The Vienna state government had opposed the retention of certain exceptions to the smoking ban in restaurants. The applications - in addition to the Vienna state government, two applicants whose business was in the restaurant sector had also opposed the TNRSG - were based on fundamental and constitutional considerations. It was claimed (among other things) that there was a violation of the right to physical integrity, a violation of the principle of equality and the protection of legitimate expectations that can be derived from this, and other fundamental rights provisions.
The Constitutional Court rejected the applications and ruled that the TNRSG did not contradict the Austrian constitution. On the one hand, the differences in employee protection were objectively justified: the contested regulations did not carry out the necessary balancing of the negative effects on employees affected by tobacco smoke on the one hand and the gains in freedom on the other in a disproportionate manner. On the other hand, a differentiation between rooms in which food and drinks are served and public rooms that serve other purposes was not unreasonable. The distinction between small catering businesses, which are not affected by the smoking ban, and larger businesses (which are required by law to set up a smoke-free main room) was in line with the concern to avoid competitive disadvantages for small businesses, and there was also no trust on the part of restaurateurs that was worthy of protection. Finally, the European Convention on Human Rights would not provide a basis for prescribing an absolute ban on smoking; the Member States have a “margin of appreciation” and an unconditional and exception-free ban on smoking in restaurants cannot be derived from the ECHR.