The Legality and Constitutionality of Anti-smoking Measures
according to the Jurisprudence of the Greek Council of State -
Council of State Judgements 551/2019 and 4171-2/2012
Assistant Judge, Council of State
An anti-smoking nonprofit organization, one of its partners and two of its volunteers challenged the legality of a Ministerial Decision authorized by Art. 45 of L. 3986/2011 which provided an exemption to the smoking ban in public places, for two categories of establishments, on the condition that they pay a tax, of €200 per square meter of designated smoking areas. L. 3986/2011 was part of the legal framework of the Greek Economic Adjustment Program and it imposed structural and fiscal measures. The Court ruled that the exemption was instituted solely on economic and fiscal considerations and did not serve any of the objectives of the WHO Framework Convention on Tobacco Control (FCTC), which was ratified by L. 3420/2005 and was therefore, according to Art. 28 para. 1 of the Constitution, prevalent over any contrary provision of the law. This is not the first time the Court has examined the legality and constitutionality of anti-smoking measures. In 2012 it examined a case brought by a political party of “fanatical smokers" which challenged the constitutionality of anti-smoking measures, claiming that they infringe upon their liberty. By a majority of 5 the Court held that no right to smoke is enshrined under the Constitution, whereas 2 judges were of the opinion that anti-smoking measures are unconstitutional.
