Online message – Thursday 05/25/2023
Jurisprudence | Tübingen may levy packaging tax (BVerwG)
The Tübingen packaging tax is essentially legal. The Federal Administrative Court (BVerwG) in Leipzig on decided ( 9 CN
1.22).
Background: Since January 2022, a tax on disposable packaging has been in force in Tübingen, regardless of the material. This should generate income for the city budget, reduce the pollution of the cityscape from packaging disposed of in public spaces and provide an incentive for the use of reusable systems. One-way packaging, crockery and cutlery are taxed “provided that food and drinks are sold in them or with them for immediate consumption on the spot or as take-away dishes or drinks to take away”. The tax is €0.50 for each disposable packaging and €0.20 for each disposable cutlery set. The tax rate per single meal is limited to a maximum of €1.50.
Facts: The applicant, the owner of a fast-food restaurant in the city of the opponent, filed a norm control application against the statutes, which was successful before the Administrative Court (VGH) of Baden-Württemberg. The VGH declared the statutes to be invalid as a whole and justified this with the lack of location of the tax, its incompatibility with federal waste law and the lack of enforceability of the upper limit of taxation.
In response to the appeal by the respondent, the Federal Administrative Court declared the municipal tax to be mostly lawful:
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Contrary to the opinion of the lower court, the packaging tax is a local consumption tax within the meaning of the Article 105 paragraph 2a sentence 1 GG, for which the city of Tübingen was responsible. In the case of food and drinks sold for immediate consumption, whether on the spot or as “take-away”, the taxable event is so limited that their consumption – and thus the consumption of the associated packaging – takes place within the municipal area when viewed as a type. The local character of the tax is thus adequately preserved.
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As a steering tax, the municipal packaging tax does not conflict with federal waste law. It aims to avoid packaging waste in urban areas and thus does not pursue an opposite goal at the local level, but the same goal as the Union and federal legislators. Waste prevention is at the top of the waste hierarchy, as can be seen from the EU Packaging Directive, the EU Single-Use Plastics Directive, the Circular Economy Act and the Packaging Act; only then does the reuse, recycling and disposal of the waste follow.
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Municipal taxes that make disposable packaging more expensive are not excluded by the various EU and federal regulations on waste legislation. Insofar as the Federal Constitutional Court based its opposing view of the Kassel packaging tax on a “cooperation principle” under waste law 25 years ago (), such a thing can only be derived from today’s waste legislation – not decisive here – approaches.
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The indefinite upper limit of taxation of €1.50 per “single meal” (Article 4, Paragraph 2 of the statutes) and the unlimited right of access granted to the city administration within the framework of tax supervision (Article 8 of the statutes) have proven to be unlawful. However, these isolated violations do not affect the legality of the articles of association.
Those: BVerwG press release no. 40/2023 v. (JT)
Source(s):
NWB NAAAJ-40769