02.08.2019 Good news for discotheque visitors: In proceedings conducted by Pro Rauchfrei e.V., the Bamberg Higher Regional Court has clarified that a claim for injunctive relief under competition law for compliance with the smoking ban already exists if only the DJ smokes in a discotheque and the staff do not intervene after complaints.
The Würzburg Regional Court as the lower court had decided differently. The case ended up in court because the operator did not want to issue an out-of-court cease-and-desist declaration.
The original case:
A discotheque in Würzburg, Franconia, allowed the DJ to smoke one evening. When a guest complained about this to the staff, he was told that the DJ’s smoking fell under “artistic freedom”. As this was obviously a protective claim, the consumer contacted Pro Rauchfrei e.V. with a complaint at the beginning of February 2019.
By refusing to intervene against the ongoing offence, there was also a fundamental reason to clarify the situation due to the risk of repetition. The DJ’s smoking, who occupies a prominent position, could also encourage other guests to smoke. Pro Rauchfrei e.V. then initiated proceedings against the manager and demanded that he issue a cease-and-desist declaration.
As there was no response, Pro Rauchfrei e.V. pursued its goal in court. At first instance, the Regional Court of Würzburg rejected the claim for injunctive relief (Regional Court of Würzburg, decision of 26 February 2019 – 1 HK O 336/19). In its published decision, the Regional Court of Würzburg stated that if the operator of a discotheque allowed a disc jockey to smoke in the restaurant despite the existing legal smoking ban, this was an attributable breach of the law. However, this was not likely to significantly affect the interests of consumers, other market participants or competitors.
Pro Rauchfrei lodged an appeal against the negative decision, which was not upheld by the Würzburg Regional Court. The files therefore ended up at the Bamberg Higher Regional Court as the final instance.
In the appeal, Pro Rauchfrei also argued that, according to the case law of the Federal Court of Justice, infringements of market behaviour regulations aimed at protecting consumer health are readily capable of adversely affecting consumer interests. The high level of protection afforded to human health means that infringements of the smoking ban must always be regarded as unfair.
It should also be noted that the question of appreciability is not based on a generalised, isolated consideration of the infringement itself, but on all the circumstances of the act complained of, including whether the act violates the provision in question more or less systematically and to what extent there is a risk that others will imitate the behaviour.
The collective interests of consumers are always affected if the weight and significance of the offence goes beyond the individual case and makes a general clarification appear necessary. However, there are no strict requirements to be met. Therefore, only offences that are obviously based on an oversight in an individual case are excluded from prosecution. The employees, whose behaviour must be attributed to the operator, deliberately allow smoking with reference to the obviously irrelevant freedom of art. There was no mere oversight.
This was equally the verdict of the Bamberg Higher Regional Court at the scheduled hearing, which stated:
Finally, the claim for injunctive relief was recognised by the other party. A corresponding judgement of acknowledgement was issued, setting aside the negative decision of the first instance.