Gambling regulations in Germany are anything but easy to keep track of - and sometimes even legislators only seem to realise in retrospect that certain decisions are not entirely consistent. A case in point is the absolute smoking ban in gambling halls in Saarland. In contrast to these establishments, casinos here are allowed to have special smoking rooms, which prompted a casino operator to lodge a complaint. Following the legal ruling in favour of the plaintiff, a transitional solution has now actually been decided for all stationary slot machine providers in the state.

In Saarland, the often complex and multi-layered regulations of gambling law are once again highlighted. The starting point is the Saarland Gambling Halls Act, which has been in force since 2023 and severely restricts freedom of consumption in gaming arcades. Among other things, it provides for a strict smoking ban with no exceptions. The sticking point: casinos in the same federal state are exempt from this regulation. They are permitted to allow smokers to consume tobacco in clearly separated areas via the so-called adjoining room exemption.

Is this fair and, above all, legal? This question was raised by a court judgement following a complaint by a gaming arcade operator. The plaintiff argued that it was disproportionate to prohibit her customers from smoking in closed rooms, while this remained permitted in casinos. The court considered the complaint to be a possible infringement of the freedom to choose an occupation and ruled that the smoking ban should be temporarily suspended in this case. According to the court, this decision and smoking in special side rooms did not affect the safety of non-smokers or player protection to any relevant extent.

The Automaten-Verband-Saar (AVS) warned against premature action following the decision, as the ruling initially only applies to the plaintiff's specific case and the main proceedings are still pending. Until then, the legal situation remains uncertain for many amusement arcade operators and the question of a possible precedent remains open. However, the Ministry of Economic Affairs, Innovation, Digital and Energy recently announced a transitional arrangement that will apply to all casinos at least until the final judgement: smoking is permitted again.

Transitional solution allows smoking rooms - possibly even with gaming machines in future

The interim solution that the Ministry of Economic Affairs, Innovation, Digital and Energy in Saarland has adopted at the suggestion of the AVS allows arcade operators to set up smoking areas again with immediate effect. However, these separate rooms are subject to certain restrictions: Above all, no gaming machines may be set up there.

This initially follows on from the restrictive regulations of the Saarland Gambling Halls Act of 2023, which completely prohibited the consumption of tobacco products in gambling halls. However, the amendment now represents a first step back towards more differentiated regulation, similar to that which applied before the law was amended. At that time, a maximum of two gaming machines were allowed to be integrated into smoking areas. The AVS has already signalled that it is in talks with the ministry to have this exception approved again.

In the main proceedings, it must ultimately be clarified whether the absolute smoking ban, as formulated in the Saarland Gaming Halls Act, constitutes a disproportionate interference with the operators' freedom to exercise their profession. Such a far-reaching restriction could be considered unconstitutional if it proves to be unreasonable. The unequal treatment between gaming arcades and casinos appears particularly problematic in this context, as the latter are still allowed to set up smoking areas with gambling facilities. This differentiation raises the question of whether the same standards should not be applied here for comparable establishments, which could be legally interpreted as discrimination.

According to reports, the SPD parliamentary group in the Saarland state parliament, which holds the majority and played a key role in passing the current Gambling Arcades Act, is already signalling that it is considering amending the legal situation. Whether and in what form this will happen, however, depends largely on the court's decision. Should the main proceedings end in favour of the amusement arcade operators, this could have far-reaching consequences for the regulation of the gambling market in Saarland. The reintroduction of smoking areas with limited gaming options would then not only seem conceivable, but also politically opportune in order to find a balance between the interests of the operators, the rights of customers and the protection of non-smokers.

It is somewhat curious that the SPD, which is now quite publicly in favour of a legal change, supported the new Gaming Hall Act of 2023 much more strongly during its introduction. They were clearly in favour of the regulations and even stated via MP Stefan Löw that the aim of the provisions was to reduce the amount of gambling on offer in the federal state.

Conclusion

The decision to completely suspend the absolute smoking ban in Saarland amusement arcades for the time being seems appropriate in terms of equal treatment and professional freedom. The transitional regulation therefore allows amusement arcade operators to temporarily set up smoking rooms, although there is still some uncertainty regarding the final legal situation. Anyone who does not already have a smoking area should therefore be cautious and not immediately initiate extensive construction measures.

The discussions about possible adjustments to gambling law could influence future guidelines, particularly with regard to the balance between non-smoker protection and the needs of operators. It remains to be seen what the outcome of the main proceedings will be and what long-term effects the final decision will have on the gambling industry in Saarland. For the time being, however, tobacco fans in Saarland gaming arcades and operators have the go-ahead for separate smoking areas.

Image source: https://pixabay.com/photos/cigarette-smoke-burning-cigarette-110849/

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