Germany

The federal Ordinance on Workplaces does not contain a definition of “second hand smoke” or similar term. Because the Ordinance requires safeguards against the health hazards due to tobacco smoke, a definition of “tobacco smoke” would likely aid in implementing the Ordinance.

The Federal Non-Smokers Protection Act does not use the term “second hand smoke” or a similar term; therefore, a definition is not strictly necessary for interpretation of that law.

Neither the Federal Non-Smokers Protection Act nor the Ordinance on Workplaces contains a definition of “smoking” or “smoke”. The failure to define this key term could impede implementation or enforcement of the provisions in these laws that prohibit “smoking” in certain places. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the federal law should contain a definition of “smoke” or “smoking” in accordance with the definition provided in the FCTC Art. 8 Guidelines.

The Federal Non-Smokers Protection Act does not contain a definition of “public place”. However, a definition of “public place” is not necessary to interpret the law because the law does not prohibit smoking in all indoor “public places”. Rather, smoking in most public places is regulated by state (Länder) law.

To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, either the federal law or all state laws should contain a definition of “public place” in accordance with the definition provided in the FCTC Art. 8 Guidelines.

Workplaces are:

1. places in buildings or outdoors which are located on the site of a company or a construction site and which are intended for use as workstations,

2. other places in buildings or outdoors which are located on the site of a company or a construction site and to which workers have access within the framework of their work.

(2) Workstations are areas of workplaces in which workers have to be present not only for a short time regularly over an extended period during the work they have to perform or in the course of their daily working hours.

(3) Working rooms are the rooms in which workstations are set up permanently within buildings.

(4) The workplace also encompasses:

1. traffic routes, escape routes, emergency exits,

2. storage, machine and secondary rooms,

3. sanitary rooms (changing rooms, washrooms and lavatories),

4. rest and standby rooms,

5. first-aid rooms,

6. accommodations.

Workplaces also encompass equipment where special requirements are set for such equipment in this ordinance and the equipment is used in the operation of the workplace.

The definition of “workplace” in the Ordinance on Workplaces aligns with the definition of “workplace” in the FCTC Art. 8 Guidelines in that it applies to all areas in which work is done, including private offices and common areas. However, to more fully align with the definition in the FCTC Art. 8 Guidelines, the definition in the Ordinance should clearly state that “workplaces” include areas “permanent or temporary” in nature, and “regardless of whether work is done for compensation or on a voluntary basis.”

Public passenger transport for the purposes of this law includes:

a) The public rail system’s railway vehicles used to transport passengers pursuant to §3 para. 1 of the General Railway Act,

b) The streetcars, trolley buses and automobiles used to transport passengers, to the extent the transport is subject to the regulations of the Passenger Transport Act [Personenbefoerderungsgesetz] or §a no. 4(d), (g) or (i) of the Exemption Regulation [Freistellungs-Verordnung],

c) Aircraft used for commercial or paid passenger transport or for commercial sightseeing flights,

d) Liner passenger ships, which transport passengers.

The definition of “public passenger transport” contained in the Federal Non-Smokers Protection Act does not fully align with the definition in the FCTC Art. 8 Guidelines in that the definition in the Act enumerates certain types of public transportation, whereas the definition in the Guidelines applies to “any vehicle for carriage of members of the public.” However, as applied, the definition in the Act covers all forms of available public transportation in Germany and, therefore, aligns with the intent of the FCTC Art. 8 Guidelines.

The federal law does not contain a definition of “indoor or enclosed”. The Federal Non-Smokers Protection Act prohibits smoking in federal facilities, public transport and public train stations in “buildings and other completely enclosed rooms”. The failure to define the key term “enclosed” may impede implementation and enforcement of the law. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the federal law should contain a definition of “enclosed” in accordance with the definition provided in FCTC Art. 8 Guidelines para. 19.

Neither the Federal Non-Smokers Protection Act nor the Ordinance on Workplaces contains a definition of “tobacco product”. Although the term “tobacco product” is not used in these laws, the failure to specify the prohibition on smoking a “tobacco product”, together with the failure to define “smoking” and “tobacco product”, could impede implementation of FCTC Art. 8 and the FCTC Art. 8 Guidelines. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should contain a definition of “tobacco product” in accordance with the definition provided in FCTC Art. 1(f).

Federal facilities for the purposes of this law are:

a) Government agencies, administrative offices, courts and other federal public facilities,

b) Corporations, institutions and foundations directly under federal government control.

The definition of “federal facilities” is significant because the Federal Non-Smokers Protection Act prohibits smoking in federal facilities.

Rooms for the purposes of this law are:

a) Structurally separate units of a building,

b) Physically separate units of a means of transport.

The definition of “rooms” is significant because the ban on smoking in the Federal Non-Smokers Protection Act applies to “buildings and other completely enclosed rooms.”