On 27 March 2018 the plenum of the Constitutional Court (judge rapporteur Pavel Rychetský) partly granted and partly denied motion of a group of 20 senators who proposed annulment of a number of provisions of the Act no. 65/2017 Coll., on the Protection of Health from Harmful Effects of Addictive Substances (“Anti-Smoking Act”). The petitioner stated that although the objective of Anti-Smoking Act might be understandable and even legitimate, the act is nevertheless in breach of Article 1 (1) of the Constitution which defines the Czech Republic as a state governed by the rule of law. It does not, in particular, respect requirement of reasonableness, adequacy, appropriateness and necessity of legal regulation. The pivotal argument of the senators was that the government of liberal, rule-of-law state should not educate its citizens and impose on them the lifestyle which the current majority considers to be desirable.

The annulled provisions of the Anti-Smoking Act can be divided into three groups: 1) provision prohibiting the sale of tobacco products and alcoholic beverages at “events intended primarily for persons under the age of 18,” 2) provision sanctioning self-threats, 3) provisions prohibiting smoking inside catering service establishments.

The Constitutional Court first addressed the question whether the objectives pursued by Anti-Smoking Act are legitimate. It noted that the act was adopted in order to protect health (Article 31 of the Czech Charter of Fundamental Rights and Freedoms – “Charter”) and life of persons (Article 6 (1) of the Charter), as well as certain vulnerable groups such as children, adolescents and pregnant women (Article 32 in connection with Article 6 (1) of the Charter). Furthermore, the act might have positive effect on the environment (Article 35 (1) of the Charter) and state expenditures on healthcare.

Then the Constitutional Court proceeded with substantive review of the contested provisions. In relation to the first group of provisions (prohibiting the sale of tobacco products and alcoholic beverages at “events intended primarily for persons under the age of 18”), the Constitutional Court found that the word “primarily” leads to considerable uncertainty of the legal regulation. Thus, the subjects of the regulation may be unable to unambiguously determine the nature of the event and thereby put themselves at risk of committing an administrative offence. Such ambiguity and uncertainty of the legal regulation is, according to the Constitutional Court, unacceptable from the constitutional point of view.

The second group of contested provisions (prohibiting and sanctioning ingestion of alcoholic beverages or other addictive substances before or during performance of any activity which may pose risk to life or health of the person performing the activity or of other person, or to a property) was annulled to the extent it sanctioned so-called self-threats. The Constitutional Court observed that the challenged provision applies even to routine activities which are carried out in privacy of one’s home, are not employment-related, and are not capable of affecting any other person. Since the contested provision unduly restricts freedom of individuals, it was declared unconstitutional by the Constitutional Court.

However, the Constitutional Court dismissed objections against the third group of provisions which prohibited smoking inside catering service establishments. It concluded that these provisions pursue the legitimate objective of protecting health of individuals, especially the employees of such establishments. The Court explained at great length why it does not consider some other means of regulating smoking inside such establishments (e.g. creating smoking rooms) to be a sufficient alternative which would offer a comparable level of protection to the aforementioned objective. It further noted that a complete ban on smoking inside catering service establishments is – from a comparative perspective – considered as common, even standard, in other countries. However, the Constitutional Court stressed that the legislature is indeed free to find other, less restrictive ways of regulating smoking inside catering service establishments, since the currently applicable legal regulation is not the only constitutionally permissible solution. The Constitutional Court also upheld other contested provisions of the Anti-Smoking Act and dismissed the petition in the corresponding part.

Justice Fiala issued a dissenting opinion on statements I and II of the judgement. He argued that the provision concerning a ban on selling tobacco products and alcoholic beverages at “events intended primarily for persons under the age of 18” and the provision sanctioning self-threats should have been upheld. Justices David, Jirsa, Lichovník, Sládeček, Šimíček and Šimáčková issued dissenting opinions in which they argued that the Constitutional Court should have annulled provisions prohibiting smoking inside catering service establishments, too.