One more drag

Berlin's smoking ban is sick – it's coughing and wheezing like a dying patient desperate for attention in an apathetic hospital. In comparison, Europe's other smoking bans are striding around like robust, sturdy nurses, immune to the two viruses that have infected their German counterpart: legislative confusion and popular resentment.

The first of these has caused noticeable damage: the ban has been so weakened by legal exceptions, constitutional interventions and the failure to enforce it that Berliners could be forgiven for thinking it had been reversed. Most bars give ashtrays to any punter who asks and sometimes even this pretence is foregone – after a few months of discretion, a lot of places just plonked them back on the tables. The realisation has dawned on this city that the district authorities do not have a hope of policing the prohibition.

Berlin's smoking ban also suffers from a weakened immune system. The ‘Volksbegehren’ reforms of 2006 gave citizens the right to force plebiscites by collecting signatures; with an issue that attracts so much public attention, it was almost inevitable that someone would use this to stir up a popular revolt. Hence the rise of Initiative Für Genuss, (or the "Citizens' Initiative for Enjoyment," as it likes to translate its name), a group of seven angry libertarians and hundreds of volunteers currently in the middle of a full-blown Berlin-wide campaign to put the smoking ban out of its misery.

This team is made up of unprepossessing people. They meet in a small Friedrichshain bar called Kasiske's. Only two of them, as bar owners, could be said to have a personal stake in the petition and two are actually nonsmokers; one of them is a lawyer. They are not otherwise politically engaged. One of the main coordinators, a silver-haired telecommunications project manager called Thoma Michel, explains: "You know the way it is – you're sitting in the bar, chatting about all the things that annoy you. This time we just decided to do something about the one thing that really affected us."

Having spent more than a year industriously networking with bar, club and hotel owner associations, as well as libertarian groups from all over Europe, Für Genuss now has until the end of May to collect the necessary 170,000 signatures to force a referendum that could give Berlin bars the right to allow smoking. At the time of writing, the group estimated – with a quarter of their collection time elapsed – that it has between 15,000 and 18,000 signatures, but Michel is confident of success once the campaign gathers momentum. It has won passionate support from prominent artists like the musician Joe Jackson, who vented spleen on the subject in last September's EXBERLINER, and TV actor Axel Prahl.

Despite the gratifying celebrity anger, Michel wants one thing cleared up: "We do not want to overturn the entire ban. We just want to change the clause that relates to bars and restaurants." Or as their public statement says: "Wherever you have to go (e.g. public offices and public transport), we respect the wish of non-smokers to have a non-smoking environment. Wherever you can go (e.g. bars and leisure areas), we demand the right of customers and bar owners to decide for themselves."

Michel believes that Für Genuss has been very shrewd in the wording of its proposal. "We are actually proposing a new law. This is very important, because if we win, it will go into law. There won't be another stage involved – no decision will have to be made by any parliamentary house. It will be binding – and if we achieve that, then we really will have achieved something that hasn't been done anywhere else in the world."

This is a trick that was missed by those who proposed last year's referendum to keep Tempelhof Airport open. Because of the proposal circumstances, the best the Society for the Interests of City Airport Tempelhof could do was force the Berlin senate to reconsider its decision. Even if the referendum had been successful, Tempelhof would have closed sooner or later. The smoking ban vote, if it goes ahead, could represent real bottom-up change, particularly since no political party is likely to support it. "Opinion is split straight through all the parties. There are people for and against smoking in all of them," says Michel. Still, Berlin’s Green party spokeswoman Heidi Kosche thinks that no one in her party is against the smoking ban. She also suspects that the Berlin government will "take the wind out of the campaign's sails" because a new amendment by the city's ruling parties (SPD and Die Linke) could allow small, food-less bars to apply for smoking licenses.

The pro-business FDP, meanwhile, presents an interesting case because although it supports Für Genuss' proposal (it suggested something similar when the debate began), it is "fundamentally opposed to these constant political Volksbegehren interventions," according to health spokesman Kai Gersch. As for the smoking ban, he thinks the government has just descended into one absurdity after another. "The current debate seems to be whether smokers' bars can warm up your sausages or not."

Armed with political and financial independence (Für Genuss claims that its campaign is exclusively paid for by private individuals), it looks as though Berlin's smokers are the vanguard of a new anti-state movement. Although Michel and Für Genuss avoid the language that Joe Jackson uses – he described the state's policy as "fascist" – they see the "non-smokers' protection law" as part of a larger trend toward state control that developed in the last two years. "A lot of other repressive laws took effect at the beginning of 2008," says Michel. "The vehicle ban which banned polluting cars from inner cities, and the federal data storage laws, which meant that telecommunications companies had to store customers' personal data. All these are laws that infringe on a private individual's property and freedom. The smoking ban is part of this."

It will be interesting to see if Für Genuss can tap into the fear of state control. Are smokers really the only freedom fighters we've got left?

THE SMOKING BAN SO FAR

January 1, 2008 - The German smoking ban in all public areas, including bars and restaurants, comes into effect, but with a six-month grace period before penalties will be exacted. The states make their own laws, resulting in different exceptions, fines and levels of policing; almost all states allow bars a separate smoking room.

February 12, 2008 - The constitutional court of Rhineland-Palatinate partially lifts the ban in that state because it is seen to threaten small bars with extinction.

July 30, 2008 - An association of bar owners from Berlin and Baden-Württemberg brings its case to the federal constitutional court in Karlsruhe. Its decision creates new problems. Although the smoking ban is held to be not in itself unconstitutional, the court concludes that the smoking room exception is unfair to small bars: smoking is allowed in bars under 75 square metres - as long as no food is prepared - and the states must come up with a new law by 2010. The option of a total ban as the only 'fair' solution is still constitutionally viable.

January-February 2009 - After one year, media reports suggest that the ban is not being effectively enforced anywhere in Germany. Der Spiegel quotes Joachim Zeller, head of the Mitte Ordnungsamt: "We can follow up tip-offs from the public, but proper checks just aren't possible with the workforce we have." The Neukölln Ordnungsamt even publicly admits it is not policing the ban.

January 26, 2009 - Für Genuss in Berlin begins its campaign - the only one of its kind in Germany – to force a referendum by collecting 170,000 signatures.

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