The protection of human freedom without the protection of human life, health, and the environment which allows life and freedom, would be meaningless. It is the duty of the state, in order to ensure and fulfil the right to protection of health under Article 31 of the Charter of Fundamental Rights and Freedoms, to take adequate measures, including by means of improving all aspects of external living conditions. In the cases that go beyond the legal sphere of an individual, the state is obliged to protect health even against the will of the persons concerned.

The ban on smoking inside a catering service establishment is primarily focused on every natural person staying inside the establishment. As a result, the autonomy of the will of natural persons (smokers) to deal with tobacco products is restricted and, at the same time, their right of ownership under Article 11 of the Charter is interfered with, because those persons may not smoke in certain places. This ban also affects catering service operators as it might reduce the attractiveness of their catering services. In this sense, it is an interference with their fundamental right to conduct business under Article 26 (1) of the Charter.

In the case of persons staying inside the catering establishment, the required protection against passive smoking cannot be achieved otherwise than by not allowing smoking in that area, or by dividing the premises in the manner allowing smoking only in any part of the premises. The choice of the desired effects (here the level of health protection) lies in particular with the legislature. It is primarily up to the legislature to assess the appropriateness of that solution, taking into account all relevant aspects.

Summary:

 I.

A group of 20 senators proposed the annulment of a number of provisions of the Act on the Protection of Health from the Harmful Effects of Addictive Substances. The petitioner stated, in particular, that although the adoption of the so-called Anti-smoking Act was motivated by understandable arguments, it is in breach of Article 1 (1) of the Constitution, which defines the Czech Republic as a rule of law. It does not, in particular, respect the reasonableness of legal regulation, adequacy, appropriateness or necessity. The petitioner emphasised that the public power in the liberal rule of law should not educate citizens and impose on them the lifestyle that the current power holder considers to be right. The contested provisions were summarised by the petitioner in the corresponding seven areas, while considering the legal regulation contained in the Act in question to be unconstitutional and contrary, in particular, to human freedom, the protection of property, and the right to conduct business.

II.

The Constitutional Court first dealt with the objective of the Act on the Protection of Health from the Harmful Effects of Addictive Substances. It has been adopted and observed in order to protect health (guaranteed by the state under Article 31 of the Charter) and life (Article 6 (1) of the Charter), as well as to protect children and adolescents and pregnant women (Articles 32 and Article 6 (1) of the Charter) in an extraordinary manner. In a broader context, the purpose of the Act can also be seen in the improvement of the environment (Article 35 (1) of the Charter) and the reduction of state expenditures on health and safety. He stated that the objectives pursued by the Act are, therefore, legitimate and, in general, also serve to fulfil the international obligations of the Czech Republic. Then, the Constitutional Court made a substantive review of the conformity of the various contested provisions with the constitutional order and came to the following conclusions.

 1. Provisions relating to “events intended primarily for persons under the age of 18”

The petitioner contested the provisions prohibiting the selling of tobacco and similar products or selling and serving alcoholic beverages at an event intended primarily for persons under the age of 18. By breaching these specific prohibitions, both the vendor and any natural person commit an administrative offence in the case of selling or serving alcoholic beverages.

The Constitutional Court found that the objection of uncertainty of the term of “event intended primarily for persons under the age of 18” is justified. The considerable uncertainty of this term is mainly caused by the word “primarily”. Such category may cover a variety of events focused on the general public, where the “primary” focus on a particular age group might not be unambiguously clear. This creates for those interested in selling tobacco or similar products or selling or serving alcoholic beverages the uncertainty that they will not be able to recognise objectively the nature of the event and, thereby, put themselves at risk of committing an administrative offence, which from the constitutional point of view cannot be accepted. The term of “event intended primarily for persons under the age of 18” was, however, already contained in the previous legal regulation and did not cause any significant interpretation problems. Therefore, the Constitutional Court removed the word “primarily” from the provisions in question, leaving the contested provisions unchanged.

2. Provisions relating to sanctioning self-threats

The petitioner contested the words “his/her own or of” of Section 19 of the Anti-smoking Act. By doing so, the petitioner argued against the fact that the person performing any activity that might endanger health or life of his/her own or of another person or cause any damage to property, or in respect of whom other legislation provides for a ban on alcohol or other addictive substances, is forbidden to drink or use other addictive substances in the course of or before performing such activity, in order to ensure that such activity is not performed under the influence of alcohol or other addictive substance.

The Constitutional Court has found that this objection is also justified. Given that the contested provision affects every natural person in any of his/her activities, it limits completely routine activities carried out in a personal home environment that do not affect any other person (e.g. grass mowing, ironing or dishwashing). If this is not an employment-related but a private activity, it is an absurd idea that he/she could not perform these activities merely because of a possible risk to his/her own health and could not even have a glass of any alcoholic beverage during any of these activities. Therefore, the Constitutional Court has concluded that Section 19 of the Act pursues a legitimate and constitutionally agreed objective only if it does not include the words “his/her own or of” and has annulled it.

3. Provisions concerning the ban on smoking inside catering service establishments

The petitioner further contested the constitutional conformity of Section 8 (1) (k) of the cited Act prohibiting smoking inside the premises of catering service establishments, except for the use of water pipes. The catering service establishment is defined in Section 2 (i) of the mentioned Act as the premises of a catering business in which a catering service is provided which includes the supply of meals destined for direct consumption in that establishment. By violating this prohibition, any natural person commits an administrative offence, for which a fine of up to CZK 5,000 may be imposed upon the violating person.

The Constitutional Court has stated that it is aware that the prohibition in question has a strong cultural and social dimension and its aspects should be subject to a public debate. Finding a solution to the conflict between the rights of those who want to smoke and those who are forced to bear the negative consequences of that behaviour because of their exposure to tobacco smoke is above all a matter for the legislature. The role of the Constitutional Court is limited to assessing whether the chosen solution does not constitute an inadmissible interference with any of the constitutionally guaranteed rights and freedoms of the persons concerned. The Constitutional Court has concluded that this is not the case. The Constitutional Court considers the negative effect of smoking, whether active or passive, on human health to be a fact that does not need to be demonstrated. Therefore, the ban on smoking pursues a legitimate objective. In the opinion of the Constitutional Court, the separation of the smoking area is not sufficient to avoid the negative effects of the smoking of the persons who would use such smoking rooms. In addition, the health of employees of catering businesses is damaged in the smoking rooms even if the ban on serving in such areas is complied with (e.g. when cleaning such rooms).

In general, smoking rooms neither protect the health of the population nor guarantee the enforceability of the Act at least in a manner comparable to the contested ban. Moreover, the complete ban is a standard solution that is not exceptional in other countries as well. It does not interfere with the freedom of smokers to act in absolute terms, as they still have the ability to smoke in the outdoors of the catering facilities (so-called gardens), in front of such premises or in all other places where the ban on smoking shall not apply.

However, the Constitutional Court added that its conclusions do not mean that the court confirms the solution chosen by the legislature as the only possible or even the best. The fact that the solution chosen passed the proportionality test does not mean that there is no other solution that would, with the same standard of health protection, interfere with the rights of those who want to smoke, in a more considerate manner. Thus, the legislature has other means to regulate smoking in the catering services establishments in a different manner.

4. Remaining contested provisions

The petitioner further contested the provisions concerning the notification to the Ministry of Health from a distributor of tobacco and similar products, the provisions relating to the ban on selling alcoholic beverages by means of a vending machine, the provisions concerning the ban on selling or serving alcoholic beverages to selected persons, as well as the provisions relating to the reimbursement of medical or toxicological examination costs. The Constitutional Court has dismissed the petition seeking the annulment of the mentioned parts of the Act as unfounded.

III.

The judge-rapporteur in the case was Pavel Rychetský. A dissenting opinion on statements I and II was submitted by judge Josef Fiala. As to the part of statement III, dismissing the petition seeking annulment of Section 8 (1) of the contested Act. judges Ludvík David, Jaromír Jirsa, Tomáš Lichovník, Vladimír Sládeček, Vojtěch Šimíček, and Kateřina Šimáčková applied their dissenting opinions.

Judge Fiala disagreed with the annulment of adverb “primarily” because of its uncertainty, as this was not the case of an extreme breach of the fundamental requirements for laws (statement I). He did not consider as a constitutionally inadmissible interference with any of the fundamental rights the ban on endangering own health by consuming alcoholic beverages or using other addictive substances in connection with another activity and, therefore, opposed the deletion of the words “his/her own or of”, as this deceased the protection of the individual concerned (statement II).

Judges Šimíček, David, Jirsa, Sládeček, and Šimáčková noted at the beginning that the complete ban on smoking concerns not only restaurants, but also pubs, bars, and cafes. In their view, the regulation in question constitutes an interference with the right to conduct business and carry out other economic activities. The mentioned right is perceived by them not only as one of social rights but as a freedom to conduct business and, therefore, the conditions and limitations of this right must be closely linked to the specifics of the performance of a particular profession or activity. The requirements of proportionality and rationality apply to them in their entirety. In addition, the contested regulation needs to be assessed in the context of further limitations of and interference with the right to conduct business. Further and more regulations, always justified by the sophisticated argument of protecting anything, ultimately necessarily leads to the limitation and sometimes even the suppression of this freedom.

The dissenting judges have pointed to the illogicality of the argumentation of the majority that, on one hand, expressly admits the interference with the right to conduct business, while claiming, on the other hand, that the ban in question does not directly (or at all) affect the operator concerned. They saw another inconsistency in that the majority assumed that the ban on smoking did not affect the essential content of the right to conduct business. According to dissenting judges, the ban on smoking has a very uneven burden on individual addressees, as it affects most rural pubs that do not cook meals at all. The ban is thus reflected differently in individual catering establishments, depending on their location, size, focus, and usual clientele. The dissenting judges also noticed an interference with the right to private life, the integral part of which is free social interaction. They also pointed to an unjustified inequality between public spaces: in the transit area of ​​an international airport, a building-separated smoking area can be established as against the interior of catering service facilities. The judgment has also avoided the assessment of the consequences of the blanket ban on smoking: the owners and tenants of apartments living above restaurants are forced to inhale cigarette smoke and are harassed by noise, and smokers are also seen by children on the street in daily hours.

The dissenting judges further put the following question: what do social benefits of a total ban on smoking in catering service establishments consist in? While answering the question, they rejected both the possibility of protecting the owners or operators of catering facilities and the protection of non-smokers since those persons were not endangered as smoking would only be possible in smoking rooms. Finally, they have concluded that the purpose is to protect smokers exclusively from themselves. The dissenting judges therefore considered the ban on smoking in its present form as a manifestation of inappropriate paternalism and perhaps messianism. The ban on smoking can encourage the state to seek further common goods, at the expense of respect for the right of individuals to the freedom of action. Through this judgment, the Constitutional Court reverses its earlier philosophy based on the priority of an individual before the state.

Judge Lichovník inclined to the opinion of other dissenting judges, but he saw the reason for annulling the ban in particular in an interference with the right to private life, because smokers are de facto prevented by the contested provision from meeting the other people, even smokers, in restaurants. The given solution of the protection against harmful effects of smoking was considered by him to be only virtual, as smokers only moved in front of the establishments concerned, being a nuisance to anyone walking down the street. Further, he considers the legal prohibition to be inconsistent since it does not apply to the transit area of airports or medical facilities. Finally, the dissenting judge said that it was not the role of the state to correct smokers and protect the smokers against themselves.