Referendum "Non-smoker protection" in Bavaria

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Turnout: 37.70%

60.86%
38.97%
0.17%
Yes No invalid
Alliance spokesman Sebastian Frankenberger in front of the election poster

The referendum “Protection of non-smokers” in Bavaria was held on July 4th, 2010 in Bavaria because of the previously successful referendum “For real protection of non-smokers!” . The aim of the referendum was to change the Bavarian law on health protection ( Health Protection Act , GSG), which finally introduced a ban on smoking in restaurants without exceptions. It was initiated by the ÖDP , later it was also supported by the SPD , the Greens and numerous non-profit associations. Between November 19 and December 2, 2009, 13.9% of the voters registered for the referendum. The state parliament rejected the referendum on April 14, 2010, resulting in a referendum on the Health Protection Act. Around 3.5 million voters (37.7%) took part in the referendum, of which around 2.1 million (61.0%) voted for the draft law.

Starting position

In the state elections in Bavaria in 2003 , the CSU once again achieved (and expanded) an absolute majority and was thus able to govern alone again. It implemented the most comprehensive smoking ban in Germany to date, which came into force on January 1, 2008. In the state elections in Bavaria in 2008 , the CSU lost the absolute majority it had held since 1962. Some party representatives made the smoking ban partly responsible for the debacle. Prime Minister Horst Seehofer saw "the Bavarian people's soul hurt". It was also seen as problematic that many innkeepers had circumvented the law by setting up so-called "smoking clubs", which often offered ad hoc membership. The future coalition partner, the FDP , had spoken out in favor of a "more liberal" (smoker-friendly) law during the election campaign. This was then implemented under the Seehofer I cabinet on August 1, 2009, which was sharply criticized by the opposition and non-smoking initiatives.

Bill

The draft bill of the referendum corresponded almost completely to the version of the Health Protection Act of December 12, 2007, which essentially applied in Bavaria from January 1, 2008 to July 31, 2009. The only difference was that smoking should be prohibited in every case in restaurants : The exception for closed societies used to set up so-called smoking clubs is not provided (Art. 2 No. 8). This exception had already been lifted by the amendment to the Health Protection Act on August 1, 2009; however, the referendum was intended to abolish the new exceptions introduced with this change in the law.

The referendum and the successful referendum introduced the following changes compared to the previous legal situation:

  • The smoking ban applies in all restaurants (including festival tents), without exceptions.
  • In cultural and leisure facilities (if they are not covered by the Restaurant Act), the Health Protection Act - and thus the smoking ban - only applies if they are publicly accessible. Previously, according to the law, all such facilities were affected by the law, regardless of whether they were open to the public or not.
  • In cultural and leisure facilities (whereby only the publicly accessible ones are affected by the law, see above) as well as restaurants, no smoking rooms are possible (until July 31, 2010 adjoining rooms could be designated as smoking rooms. In discotheques there was no dance floor in the smoking room ).
  • According to the Health Protection Act, children and young people are not prohibited from entering the remaining smoking rooms (e.g. at airports). However, children and young people are also prohibited from smoking there due to the provisions of the Youth Protection Act. Until July 31, 2010, children and young people were expressly forbidden from entering smoking rooms.
  • The so-called “innovation clause”, according to which there could be further exceptions to the smoking ban through an ordinance of the Bavarian Ministry of the Environment, if a comparable non-smoker protection was achieved through technical precautions, was omitted.

The following table summarizes the differences based on the legal texts between the previously applicable law and the current law in the version of the referendum (does not match the wording):

according to Health Protection Act of December 20, 2007, last amended by the Act of July 27, 2009, valid until July 31, 2010 Current Health Protection Act of July 23, 2010 (version of the popular initiative "For real non-smoker protection!")
Art. 2 No. 6 The Health Protection Act finds [u. a.] Application to: cultural and leisure facilities [...], in particular cinemas, museums, libraries, theaters and club premises. The Health Protection Act finds [u. a.] Application to: cultural and leisure facilities […], as far as they are publicly accessible, in particular cinemas, museums, libraries, theaters and club premises.
Art. 5 Para. 1 No. 4 Excluded from the smoking ban are [also] beer, wine and beer tents that are temporarily operated and usually at different locations and temporarily used as Festhalle stationary halls at fairs and similar large events; a period of a maximum of 21 consecutive days in relation to a location is considered temporary. [No corresponding provision in the draft law.]
Art. 5 Para. 1 No. 5 Excluded from the smoking ban are [also] drinks embossed restaurants with less than 75 m² guest area and no separate side room when children and adolescents are not admitted and the restaurants at the entrance area in clearly recognizable way are marked as smoking restaurants to where minors are not allowed, . [No corresponding provision in the draft law.]
Art. 5 para. 2 Further exceptions can be permitted by ordinance […] if technical precautions can be used to provide protection against the dangers of passive smoking that is comparable to the smoking ban [so-called “innovation clause”] . [No corresponding provision in the draft law.]
Art. 6 para. 1 Also in culture and leisure facilities (Art. 2 no. 6) and restaurants (Art. 2 no. 8) , the smoking can be allowed in an adjacent room . In discos and other dance halls smoking can only be permitted in an adjoining room if there is no dance floor in it. No smoking rooms in cultural and leisure facilities (Art. 2 No. 6, if accessible to the public) and restaurants (Art. 2 No. 8).
Art. 6 para. 3 Children and young people are not permitted to enter smoking rooms. [There are individual exceptions, for example for prisons and addiction therapy facilities.] [No corresponding provision in the draft law.]

Procedure

Request

On July 17, 2009, two days after the Bavarian State Parliament had decided to relax the law on the protection of non-smokers, the initiators of Klaus Mrasek ( ÖDP , representative for the referendum) and Sebastian Frankenberger (ÖDP, deputy commissioner) submitted the application for approval of a referendum as a whole 42,028 valid signatures at the Bavarian Ministry of the Interior . The required 25,000 signatures were thus obtained and the request was approved by the Ministry of the Interior on August 18, 2009.

registration

The entry period for the referendum ranged from November 19 to December 2, 2009. The final result was 1,297,596 valid entries for the referendum, which corresponds to 13.9% of all eligible voters. The number of 936,350 signatures (10% of those entitled to vote) required for the legal validity of the referendum was thus exceeded by 361,246 entries. Thus, this referendum in Bavaria is the second most successful in absolute numbers (after referendum “No to tuition fees in Bavaria” ) and in percentage terms the fourth most successful referendum since 1967.

Treatment in the state parliament

The legally valid referendum was submitted to the Bavarian State Parliament on January 14, 2010 by the Bavarian Prime Minister . In the attached statement, the state government declared its rejection of the referendum and instead saw the then applicable legal situation as an “appropriate and appropriate balance of conflicting interests”.

The state parliament dealt with the request in the first reading on February 4, 2010 and in the second reading on April 14, 2010. The three-month deadline was thus fully used. The state parliament rejected the bill for the referendum, but did not pass a counter-bill. The parliamentary groups of the CSU , the FDP and the Free Voters spoke out against the referendum , the SPD and the Greens voted in favor. Contrary to the majority of the parliamentary groups, three CSU members voted for the referendum, but the referendum also received a vote against from the SPD.

Referendum

Due to the rejection of the state parliament, a referendum on the Health Protection Act became necessary. The Bavarian State Government set July 4, 2010 as the date for this. Since no new legislative proposal of its own was submitted to the vote by the state parliament, a vote between the existing legal situation and the draft bill of a referendum took place for the first time. The question on the ballot was:

Do you agree to the bill of the popular initiative “For real non-smoker protection!” Printed below ?

Those who voted could vote “yes” or “no”.

According to the official final result, 60.86% (2,150,582) of the votes cast were in favor of the referendum, 38.97% (1,377,202) against; 0.17% (6,093) were invalid. The turnout was 37.70% (3,533,877). The new version of the Health Protection Act thus came into force on August 1, 2010.

Action alliance "Bavaria says no!"

In March 2010, on the initiative of the Association for the Preservation of Bavarian Tavern Culture (VEBWK), the “Action alliance 'Bavaria says no!' for freedom and tolerance ”, which campaigned for the rejection of the referendum in a referendum. In addition to the VEBWK, alliance partners were industry associations from the catering trade, festival hosts, showmen and breweries as well as the tobacco industry. The Bavarian Party was the only party to join the alliance. On July 1, 2010, Deutschlandfunk reported that three quarters of the alliance was financed by the tobacco industry and the tobacco wholesalers.

Unsuccessful constitutional complaint

A constitutional complaint by two landlords and a smoker against the law passed in a referendum was not accepted for decision by the Federal Constitutional Court . In the decision, the Federal Constitutional Court referred to its judgment of July 30, 2008, in which it was already made clear that a strict smoking ban is compatible with the Basic Law.

Sanctioning for violations of the law

Violations of the Health Protection Act are punished as an administrative offense with a fine of five to 1000 euros.

Effects

Sales development in the catering industry

So far, there have been no feared drops in sales due to the smoking ban. In the second half of 2010, sales in Bavarian gastronomy even rose slightly by 1.5%. This trend continued in the following months: from January to September 2011, sales in the catering sector rose nominally by 5.1 percent, in real terms ( price-adjusted ) by 3.6 percent.

Effects on Oktoberfest 2010

Due to the short lead time to the Oktoberfest 2010, the city of Munich decided not to require the operators of the festival tents to take preventive measures, such as structural changes to the tents. However, the landlords were required to post references to the smoking ban in the tents and to ensure compliance with the smoking ban through the security services. Breaches of the smoking ban are indeed administrative offenses, but, since the principle of opportunity applies in the regulatory offense law, they are not punished on the basis of discretion in individual cases.

The landlord's spokesman Toni Roiderer announced, however, that the Oktoberfest hosts have agreed to implement the smoking ban at the Oktoberfest 2010 in order to gain experience for the coming year. If the implementation goes largely smoothly, renovations could be avoided for 2011 and the prices for beer and food would not have to be increased significantly.

Effects on other countries

The success of the Bavarian referendum has led to similar initiatives being launched in other countries (e.g. North Rhine-Westphalia, Hamburg and Berlin), at the federal level and in Austria.

Web links

Commons : Popular initiative for the protection of non-smokers in Bavaria  - collection of images, videos and audio files

Individual evidence

  1. ↑ a b Official final result, Bavarian State Returning Officer: Referendum on non-smoker protection in Bavaria on July 4, 2010
  2. ^ Fabian Löhe: Bavaria: Germany's strictest smoking ban. In: Focus Online . December 12, 2007, accessed October 14, 2018 .
  3. ↑ AP / dpa / ddp / KS: Bavaria: Horst Seehofer plans to relax the smoking ban. In: welt.de . October 9, 2008, accessed October 7, 2018 .
  4. ↑ http://www.n-tv.de/politik/dossier/Bayern-lockern-Rauchverbot-article412951.html Bavaria relax smoking ban NTV from July 15, 2009
  5. ↑ Application for approval of the referendum "For real non-smoker protection!" , Accessed on April 1, 2020 (PDF; 80 kB)
  6. ↑ Health Protection Act , valid from January 1, 2008 , accessed on April 1, 2020 (PDF; 174 kB)
  7. ↑ Health Protection Act , valid from August 1, 2009 , accessed on April 1, 2020 (PDF; 47 kB)
  8. ↑ Announcement of the approval of the referendum (PDF; 32 kB) from August 18, 2009
  9. ^ Final result of the Bavarian State Statistical Office
  10. ^ Bavarian State Office for Statistics: Referendum in Bavaria since 1967
  11. ↑ Draft law according to Art. 74 BV and statement of the state government (Bavarian State Parliament, printed matter 16/3158 of January 14, 2010; MS Word ; 77 kB)
  12. ↑ a b c Bavarian State Office for Statistics and Data Processing: Announcement of the Bavarian State Government of April 20, 2010, Az .: B II 2 - G 58/09 (accessed on April 22, 2010; PDF; 71 kB)
  13. ↑ Action alliance “Bavaria says no!”: Bavaria says no! Referendum on "Protection of non-smokers" in Bavaria (accessed April 1, 2020)
  14. ↑ Süddeutsche Zeitung: Full steam ahead to the referendum on March 25, 2010 (accessed on March 30, 2010)
  15. ↑ Deutschlandfunk: A lot of money for a lot of smoke (accessed on July 2, 2010)
  16. ↑ BVerfG, 1 BvR 1746/10 of August 2, 2010, paragraph no. (1 - 15) (accessed August 17, 2010)
  17. ↑ Bar sales rise despite smoking ban Spiegel Online from April 10, 2011
  18. ↑ Sales in the Bavarian hospitality industry increased in the first nine months of 2011. (No longer available online.) Bavarian State Office for Statistics and Data Processing, November 14, 2011, archived from the original on March 4, 2016 ; Retrieved June 19, 2012 (press release). Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.statistik.bayern.de
  19. ↑ District administration department: Enforcement of the Health Protection Act at Oktoberfest 2010 , template no .: 08-14 / V 03677, February 9, 2010  ( page no longer available , search in web archives )@1@ 2Template: Toter Link / www.ris-muenchen.de
  20. ↑ Samples for an emergency ( Memento of the original from December 22, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.region-muenchen.de
  21. ↑ Signature list of the Hamburg Initiative  ( page no longer available , search in web archives )@1@ 2Template: Toter Link / oedp-hamburg.de
  22. ↑ Homepage of the Hamburg initiative ( Memento of the original from October 27, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.fuer-echten-nichtraucherschutz.de
  23. ^ Homepage of the Berlin initiative
  24. ↑ e-petition to the Bundestag
  25. ^ Homepage of the Austrian referendum ( Memento from January 28, 2015 in the Internet Archive )