Facts
On April 1, 2010, a law came into force in Basel-Stadt that prohibits smoking in publicly accessible rooms of catering establishments, with the exception of specially separated, unattended and ventilated smoking rooms (so-called "fumoirs"). Previously, the association "Fümoar" had sought to enable the operation of restaurants with exclusive access for association members without the obligation to establish fumoirs.
The Labor Inspectorate of the Canton of Basel-Stadt found that smoking was tolerated in the restaurant of the complainant X. AG and that employees were simultaneously working in the establishment. It then issued a directive to prohibit smoking in the premises.
X. AG filed a complaint against this directive up to the Federal Supreme Court, which ultimately dismissed the complaint.
Considerations
The Federal Supreme Court concluded that the cantonal regulation in § 34 of the Basel-Stadt Catering Act, which provides for a service prohibition in smoking rooms, is compatible with the Federal Act on Protection against Passive Smoking. The Canton of Basel-Stadt had legitimately exercised the competence remaining to it under Art. 4 of the Federal Act to enact stricter regulations for health protection.
The service prohibition in smoking rooms serves not only to protect employees, but also the general health protection by reducing the attractiveness of the smoking rooms. Since in catering establishments the…