Disposable packaging tax is constitutional
Since 2022, the city of Tübingen has been levying a tax on the use of disposable packaging as well as on single-use crockery and cutlery for immediate use or as take-aways. In 2024, the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), as the supreme court, was seized of the matter concerning the admissibility of the tax measure - the court has now affirmed that it is indeed permitted.
The tax is levied on the final vendor, therefore on the operator of a fast food restaurant, for example. The operator of a McDonald’s franchise in the city area brought legal proceedings against this tax. In the first instance, the operator was even successful with its application for a judicial review because the Baden-Wuerttemberg Higher Administrative Court categorised the city’s tax by-laws as invalid since take away food or drink did not qualify as “products for local consumption”. However, the Federal Administrative Court disagreed and ruled in favour of the city. In response, the McDonald’s operator lodged a constitutional complaint.
With its decision of 27.11.2024 (case reference:1 BvR 1726/23) the BVerfG confirmed the judgement of the Federal Administrative Court and dismissed the constitutional complaint as unfounded. The court stated that the tax did not constitute unreasonable interference with business owners’ occupational freedoms and had not forced any business closures. Moreover, the levy is a ‘local’ consumption tax. Accordingly, the food and drink that are sold, even including the dishes to take away, are usually consumed within the city limits and the essential ‘local’ aspect is thus ensured.
