## Facts

- Beginning in the 1970s, Italy enacted a series of measures restricting smoking in specified public places and on public transport to reduce health risks from secondhand smoke.
- Those measures did not expressly impose a general ban on smoking in enclosed workplaces or offices.
- Separate statutes and regulations imposed broad duties on employers to protect workers’ health and safety at work, including workplace hygiene requirements.
- In the mid-1990s, more than 300 employees of the Istituto bancario San Paolo di Torino s.p.a. brought an employment dispute against their employer seeking measures to protect non-smokers from exposure to “passive” smoking in enclosed work areas.
- In that dispute, the Tribunale di Torino (Court of Turin) raised an incidental constitutional question and referred it to the Corte costituzionale.
- The referring court argued that the legal framework—by listing some smoke-free locations while not explicitly prohibiting smoking in enclosed workplaces—failed to protect non-smokers’ health and created an unreasonable disparity in protection.
- The challenge was assessed in light of Article 32 (right to health) and Article 3 (equality/reasonableness) of the Italian Constitution, and concerned provisions including Law No. 584/1975 (smoking bans in certain places) and workplace health-and-safety rules (including D.P.R. No. 303/1956 and Legislative Decree No. 626/1994).

## Issues

1. Whether the absence of an explicit statutory ban on smoking in enclosed workplaces violated Article 32 of the Italian Constitution by failing to protect workers who are involuntarily exposed to secondhand smoke.
2. Whether the legislature’s choice to ban smoking in certain listed places but not expressly in enclosed workplaces violated Article 3 (equality and reasonableness).
3. Whether the Constitutional Court should issue an “additive” ruling that would effectively insert a general prohibition on smoking in closed workplaces into the existing legislation.

## Decision

- The Constitutional Court declared the constitutional question unfounded and did not strike down any provision.
- The Court declined to issue an additive ruling creating a blanket statutory ban on smoking in enclosed workplaces.
- The Court reasoned that health is a primary good and a fundamental right, and that there is a strong duty not to harm or place others’ health at risk through harmful conduct.
- Reading the relevant enactments together, the Court concluded that the existing body of workplace hygiene and safety obligations can require employers to take appropriate protective measures against secondhand smoke in the workplace.
- The Court emphasized that employees may bring claims before the ordinary courts to test whether an employer has met its duties by putting in place adequate safeguards for non-smokers.
- Because the existing legal framework, interpreted consistently with constitutional guarantees, was capable of protecting workers from passive smoke, the Court found no constitutional defect requiring judicial insertion of a new, detailed prohibition.

## Legal Principles

- The right to health (Art. 32) is a fundamental constitutional right that calls for effective protection, including within private-law relationships.
- Conduct that endangers others’ health can trigger duties and responsibility, including in the workplace setting.
- Employer health-and-safety obligations, even when phrased generally, can require concrete measures to protect workers from specific risks such as secondhand smoke.
- The Constitutional Court will not create new, detailed regulatory commands through additive review when the existing legal framework—properly interpreted—can deliver constitutionally adequate protection and policy choices remain for the legislature.
- Incremental legislative techniques (specific bans in designated places combined with general workplace safety duties elsewhere) do not, without more, violate equality or reasonableness under Article 3.

## Conclusion

In Judgment No. 399 of 1996, the Italian Constitutional Court rejected a challenge arising from a dispute between over 300 bank employees and their employer, holding that Articles 3 and 32 did not require the Court to add a general statutory ban on smoking in enclosed workplaces. Instead, the Court held that the right to health and the duty not to endanger others, read together with existing workplace hygiene and safety obligations, already provide a basis for requiring employers to protect non-smokers from secondhand smoke and for employees to seek judicial enforcement of those protections.


Smoking in Closed Areas Case, Judgment No. 399 of 11 Dec. 1996 (1996)