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GT verdict: Is it legal not to want children in a restaurant?

Tomáš Přibyl | 31.3.2023 | News

Last week, Marthy’s Kitchen bistro in Prague posted a post on its social networks with 7 rules concerning the entry of children and the requirements as to their behaviour during a visit to this bistro, which sparked a lot of passion, not only in the comments on social networks, and it can be said that it has become a society-wide debate about rules not only in restaurants. What rules can owners actually set regarding the entry and behaviour of children in restaurants?

This is not the first time that the concept of restaurants for adults only and the topic of banning children has been addressed in the public space and from a legal perspective. It has been repeatedly dealt with not only by the Czech Trade Inspection Authority but also by the Supreme Administrative Court. This is based mainly on assessment of specific circumstances of the individual case, since the legal basis itself does not speak very clearly for the layman or the expert, where Act No. 634/1992 Coll., on Consumer Protection, only prohibits discrimination against consumers in article 6, specifically stating that: “A seller may not discriminate against a consumer in the sale of products or the provision of services.” However, the law itself does not specify what this discrimination means. The answer to this question must therefore be sought in the decisions of the Supreme Administrative Court (“SAC”).

In one of its judgments No. 4 As 1/2014-28, the SAC stated that a general ban on children entering a restaurant establishment that is not based on objective and reasonable grounds and justified by a legitimate aim constitutes discrimination in the sense of article 6 of the Consumer Protection Act. The reasons, based on which the access of children to an establishment may be restricted in a reasonable and necessary manner, may be, for example, the structural design of the establishment or the nature of the services provided there. However, the operator’s generally stated focus on a certain type of clientele cannot be considered a justifiable reason for banning children from the restaurant.

In the past, however, the SAC also sided with the other side of the opinion spectrum, when it sided with the operator of a hotel with a nudist zone providing wellness services, which prohibited the entry of children under the age of 15. This prohibition was clearly stated in the accommodation price catalogue as follows: “For your peace of mind we do not allow children under the age of 15 years”. The Czech Trade Inspection Authority assessed this measure as discriminatory and fined the hotel operator. However, the SAC came to the opposite conclusion, stating that “the exclusion of persons under the age of fifteen from accommodation services constitutes a proportionate and necessary means of achieving the objective of providing a peaceful and quiet environment suitable for relaxation in the case of this hotel.”

The general premise of discrimination is differential treatment in comparable situations, which can be well illustrated by the well-known case of double pricing for Czech citizens and foreigners in the Czech Republic, where discrimination is based on nationality. It should be born in mind that even if discrimination does occur, there are legitimate reasons that can justify the existence of discrimination. There is no specific list of these reasons, but we can mention, for example, health and safety, protection of property, protection of privacy, freedom of association, and in the above-mentioned case, the specific business model of the company in question.

In the cases under review, it is often argued by operators and by proponents of various restrictions, that in other EU Member States, undertakings are entitled to target certain types of clientele and deny services to others. So what is the situation in terms of EU law? The European Union law is characterised by a strong emphasis on combating discrimination, and Article 21 of the Charter of Fundamental Rights of the European Union, which must be applied in the application of the EU rights, provides for a broad prohibition of discrimination, whether it be on grounds of sex, race, genetic features, social origin or age. The SAC has also stated that a blanket ban on children entering restaurants would, among other things, constitute discrimination on the grounds of parenthood, as such a ban primarily disadvantages parents.

Despite the cases presented above and the different decisions, it must be stated, and the Supreme Administrative Court has also ruled along these lines that a blanket ban on children entering a restaurant is discrimination that does not pass the proportionality test and is certainly not in compliance with EU law. In such cases, in the opinion of the SAC, peace in the restaurant can also be achieved by expelling a specific problematic child or parent.

How to judge the rules of Martha’s Kitchen in light of the above? This conclusion may be disappointing to outraged parents with children, but these particular rules most likely do not violate the law because they do not explicitly prohibit children from entering the diner in the first place, nor can this prohibition be inferred. From a legal perspective, it is rather a series of recommendations and requests. Thus, while the rules may have a passive-aggressive tone, the owner of the diner is not, in our view, committing an offence.

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