On 1 November 2019, a , general ban on smoking in pubs, bars, restaurants and other catering establishments entered into force. The ban applies in all rooms used for the production, processing, service or consumption of food or drinks as well as in the areas available to all guests visiting such businesses. Apart from traditional smokable tobacco products, the ban also covers e-cigarettes or waterpipes. All rooms and facilities subject to a smoking ban must be clearly marked as such by affixing a sufficient number of sufficiently-sized ‘No smoking’ signs or symbols and making sure these are well visible.

The keepers of those places are responsible for ensuring compliance with the smoking ban and marking requirement. Any person who smokes in a place marked as a no-smoking area is liable for an administrative offence and shall be punished with a fine of up to EUR 100, or up to EUR 1,000 in the event of a recurrence of such infringement. Any person who, as the keeper of a catering place, violates the marking requirement or fails to ensure compliance with the smoking ban, shall be punished with a fine of up to EUR 2,000, or up to EUR 10,000 in the event of a recurrence of such infringement.

Is smoking allowed in outdoor seating areas?

Smoking in al fresco areas, such as terraces or restaurant gardens, is still permitted. The law provides no definition of an ‘al fresco area’. Consequently, it is not clear how such areas need to be designed to permit smoking there. There have not been any supreme-court decisions on this question as yet. According to the office of the ombudsperson for non-smoker protection set up at the Federal Ministry of Labour, Social Affairs, Health and Consumer Protection, smoking in an outdoor seating area is permitted if the area is covered only by an umbrella or awning. If, however, structural measures are implemented to protect guests from the weather, heat or cold, this may have the consequence of the al fresco area being regarded as a closed room. If it is qualified as such, the ban on smoking applies there.

Caution is required when trying to circumvent the ban: The provisions of the Trade Regulation Act (Gewerbeordnung, GewO) governing catering establishments and, specifically, the provisions concerning the commercial operating licence apply also in cases where a private event takes place at a catering business. Any infringement of the smoking ban is subject to the administrative penalties described above.

Now, an innkeeper might hit upon the idea to rent premises adjacent to his or her business and let guests smoke there. This, however, would be a territorial expansion of the commercial operating facility for which no licence has been issued by the authorities. Anyone who changes an approved operating facility without obtaining the required licence is liable for an administrative offence and shall be punished by a fine of up to EUR 3,600. Irrespective thereof, the trade regulation authority must, by means of a procedural order, request the party exercising the trade and/or keeping the facility to establish within a reasonable time-limit the status conforming to the law. If the request is not met within the set time limit, the authority must order the required measures, like closing down all or some parts of the operation.

Risk of neighbours complaining

If guests leave the premises to smoke in the street before the establishment, there is a risk of neighbours feeling annoyed by the noise caused by people talking. Consequently, the innkeeper may have to put up with the authority ordering an earlier closing hour for the catering establishment. The time when commercial catering places have to close (closing hour) is determined by the provincial governor (Landeshauptmann) by way of an ordinance. If the neighbours are annoyed about being subjected, repeatedly and to an unacceptable extent, to non-punishable behaviour of guests staying in front of the premises of the catering business, an earlier closing hour has to be ordered. Before the authority judges whether an unacceptable nuisance exists, evidence must be taken by both a technical and a medical expert.

If one or more administrative penalties are imposed with final effect on the operator of a catering business for infringement of the smoking ban provisions, the withdrawal of the business licence may be impending: The trade licence must be withdrawn if the trade regulation authority arrives at the opinion that the licence holder, due to serious infringements of the legal provisions to be complied with and interests to be protected in connection with the respective trade, no longer possesses the reliability required for exercising the trade. Protective interests include the interest in not being subjected to health hazards. However, even multiple minor infringements may cause the authority to assume reason for fearing further irregular conduct on the part of the licence holder and to initiate the withdrawal of the licence.

Constitutional Court decision

Only on 3 October 2019, the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) denied dealing with an application, filed by restaurant owners, to cancel the legal provisions stipulating the smoking ban for violation of the constitutional right to freedom of occupation (G 189/2019-8). In the statement of reasons for the decision, the Constitutional Court explained that both smoking and passive smoking are harmful to health and that in view of the objective of protecting the health of the guests and employees of catering establishments, and irrespective of the fact that guests visit those places voluntarily, it is objectively justified for the legislative authorities to impose a general indoor smoking ban on catering establishments.

In light of this ruling it appears doubtful whether the complaint announced to be lodged with the supreme court by operators of shisha lounges wishing to obtain an exemption for their businesses will meet with success. The Ministry of Health has stated that – leaving aside the harmful substances caused by burning the coal – the water pipe fillings consisting entirely or partly of tobacco pose the same health hazards as cigarettes and other smokable tobacco products. Furthermore, shisha users generally inhale longer and more intensively and thereby consume very high amounts of harmful substances. And even if tobacco-free fillings, such as steam stones, fruity or herbal shisha flavours, are used, the inhaled substances may contain, for instance, cancer-causing substances or heavy metals.

In the case of shisha bars the argument of the smoking ban meaning a potential infringement of the freedom of occupation probably carries more weight than with other types of bars and restaurants, as these lounges make their living almost exclusively from customers smoking water pipes. It remains to be seen, though, whether this circumstance will prove a stronger argument than the protection of the health of customers and employees by which the Constitutional Court justified the ban.