Groningen Centre for Health Law

Recently, three institutions in Rotterdam jointly wrote a letter to the city’s mayor to ask the municipality to adopt a smoking ban for the streets that connect their premises via municipal regulation. The parties – the city’s main university hospital, university of applied sciences, and one of the city’s secondary schools – are all located next to or near to each other. In order to protect their students, staff, patients, and visitors, they want to create a smoke-free zone in and immediately around their premises. While the institutions can adopt smoke-free policies on their own premises, they prefer a fully smoke-free zone because they do not want to send smokers who violate their internal smoking policies to neighbouring institutions who likewise try to enforce their own smoking ban.

On 14 September 2016, the Court in The Hague ruled that the possibility to smoke in designated smoking areas in publicly accessible places is in line with Article 8(2) of the Framework Convention on Tobacco Control (hereafter: FCTC). This provision states that State Parties to the FCTC shall adopt, as determined by national law, and actively promote ‘measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places’. According to the Court, Article 8(2) of the FCTC lacks ‘direct effect’ in the Dutch legal order in the sense of Article 94 of the Dutch Constitution. This, contrary to the ruling of the Dutch Supreme Court (Hoge Raad) on 14 October 2014, where Article 8(2) FCTC was declared to have ‘direct effect’.