Eversheds obtains landmark decision in Austrian Supreme Court

Eversheds’ Austrian office has obtained a landmark decision in the Supreme Court for Austrian restaurant group Plachutta.

The case centres around the debate on smoking in restaurants. In this case, 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, the two individuals filed around 21,000 charges to the authorities due to alleged violations.

The Plachutta establishments 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 with in those restaurants, the ‘sheriff’ kept waiting until the door between the two areas was left open in order to record this circumstance and immediately complain against the restaurant owner, resulting in fines of more than several thousand euros.

Georg Röhsner, managing partner and head of the litigation department at Eversheds Austria, thereupon banned the man in the name of the restaurant owner, with the explanation that no entrepreneur is obliged to allow the access to his premises to a person whose only interest it is to file a claim against him. The sheriff did not accept this ban and consequently visited the restaurant once more, again claiming afterwards that an action for injunction of future access was lodged at the competent court.

After the first two instances had upheld the claim, the sheriff again lodged an appeal that reached the Supreme Court, which made several fundamental statements, having effects that reach far beyond the present case.

Röhsner said: ‘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 the access to their premises to private individuals who only want to access in order to be able to report offences 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.’