Eversheds Client Wins Right to Ban Self-Appointed "Smoking Sheriffs" in Austrian Supreme Court


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The Austrian office of Eversheds has obtained what it describes as a "landmark" decision in the Supreme Court for the Austrian Plachutta restaurant group.

The case centered around the debate on smoking in restaurants. The facts in the case, according to Eversheds, involved "two private individuals appointed themselves as 'smoking-sheriffs' with their sole life mission being to check whether establishments comply with all the regulations of the Austrian Tobacco Act. Within three years these two individuals filed around 21,000 charges to the authorities due to alleged violations." 

The Plachutta restaurants were frequented by one of the "smoking-sheriffs" on a regular basis. Although all regulations on the separation of smoking and non-smoking areas were basically complied in those restaurants, the “sheriff” would wait until the door between the two areas was left open and then record the violation and immediately file a complaint against the restaurant owner, resulting in time, in fines of several thousand Euros.

Eversheds Austria Managing Partner Georg Rohsner, who heads the office's litigation department, acted on behalf of the restaurant owner who banned the man from the restaurant on the basis that no entrepreneur is obliged to allow access to a person whose only interest is to file a claim against him. The “sheriff” did not accept this ban and visited the restaurant once more. As a result, the restaurant file for an injunction blocking future access at the competent court.

After the injunction was upheld on appeal, the “sheriff” again lodged an appeal with the Austrian Supreme Court, which upheld the original injunction. Rohsner explained that: “For the first time the Supreme Court has clarified that there is no public interest in having private individuals who, instead of the state, take the monitoring of the compliance with public regulations systematically into their own hands. The fundamental right of property entitles an entrepreneur to deny access to their premises to private individuals who only want to access in order to be able to report offenses against statutory regulations to the authorities. The matter of this proceeding was not about the discussion of smoking in restaurants or other public places, but rather the strengthening of the fundamental right to property as well as the aim to discourage the steady spreading of private denunciation. This is what the Supreme Court now did in an unambiguous and impressive way.”