26.08.2026 Joint press release from Pro Rauchfrei e.V. and Nichtraucherschutz-Verband Deutschland (NRSV)
Eleven citizens, with the support of Pro Rauchfrei and Nichtraucherschutzverband Deutschland, have lodged a constitutional complaint with the Constitutional Court of Baden-Württemberg against the complete exemption of beer gardens, wine bars and festival marquees from Baden-Württemberg’s non-smoking legislation. The state of Baden-Württemberg has continued to apply this exemption without objective justification, even following the reform of the law.
The complainants regard this, in particular, as a breach of the principle of equality and the right to physical integrity. Whilst there is extensive protection against tobacco smoke in other publicly accessible indoor spaces, visitors, staff and those working in marquees remain directly exposed to smoke. Whilst children are not permitted to enter smoking restaurants, they can be forced to ‘enjoy’ tobacco smoke whilst packed tightly together in the marquee. The DEHOGA’s lobbying efforts have done children and families a disservice.
A self-employed musician who regularly performs in marquees in Baden-Württemberg and is therefore compelled to attend such events is also particularly affected. The complaint therefore additionally alleges a breach of the freedom to pursue a profession. Finally, the State of Baden-Württemberg is in breach of its obligation under international law arising from the World Health Organisation’s Framework Convention on Tobacco Control (WHO-FCTC), which, in conjunction with its interpretative guidelines, prohibits the tobacco industry’s involvement in the legislative process and calls for a ban on smoking in all indoor public spaces. According to the established case law of the constitutional courts, international treaties must be taken into account when interpreting national law and fundamental rights.
Stephan Weinberger, Chair of Pro Rauchfrei e.V., explains:
It seems particularly contradictory when one considers that the law explicitly protects children and vulnerable groups even in outdoor areas such as zoos and amusement parks whilst it not only leaves the particularly busy outdoor areas of funfairs and folk festivals untouched, but even the interiors of beer, wine and marquees, even though, unlike in pubs or nightclubs, for example, children also frequent these venues.
Dr Patrick Kast, Chair of Nichtraucherschutzverband Deutschland e.V.:
Anyone who takes the protection of non-smokers seriously must also ensure it in places where people work, socialise and spend their free time. There are even more harmful substances in marquees than in pubs where smoking is permitted – even though children are present. This illogical exception, introduced by the CDU under pressure from lobbyists, runs counter to the clear will of the public. Moreover, smoke-free marquees operate without any problems in many countries.
The complainants therefore request that the contested provision be declared incompatible with the State Constitution and null and void. In the alternative, the State legislature should be required to enact a constitutionally compliant provision which includes beer, wine and festival marquees within the scope of the smoking ban or ensures equivalent and effective protection for non-smokers.
The proceedings are being conducted before the Constitutional Court of the State of Baden-Württemberg under case number 1 VB 55/26.
The complainants intend to pursue the proceedings, if necessary, all the way to the European Court of Human Rights (ECHR).
An anonymous version of the constitutional complaint will be made available on request.
Contact:
For enquiries regarding the proceedings:
Pro Rauchfrei e.V.
Stephan Weinberger (Dipl.-Jur. Univ.)
For enquiries regarding the scientific surveys:
Nichtraucherschutzverband Deutschland e.V. (NRSV)
Dr Patrick Kast, Chair
patrick.kast@nr-sv.de