Since January this year, the city of Tübingen, Germany, has levied a tax on service packaging. Not long after, a McDonald’s franchisee in Tübingen filed a complaint against the levy. The Administrative Court of Baden-Württemberg (VGH) in Mannheim has now declared the tax invalid.

In its reasoning for the judgement, the second senate of the VGH writes that a local excise tax, as levied by the city of Tübingen, violates the competence of the federal government as laid down in the Packaging Act (VerpackG) – otherwise, “the door is opened to the introduction of all kinds of excise taxes by the municipalities”.

“This, however, is ruled out by the Basic Law”, the VGH emphasised. The judges also criticised that the Tübingen waste tax was not local in nature because to-go packaging could also be taken away and consumed and disposed of outside Tübingen.

Tübingen had introduced a tax on disposable and service packaging to reduce the impact of litter from to-go packaging disposed of in public spaces on the cityscape and at the same time to incentivise the use of reusable systems. For each disposable beverage package, disposable tableware item, and other disposable food packaging, 50 cents are being charged since January, as well as 20 cents for each disposable cutlery set. The “tax rate” for a single meal was limited to a maximum of EUR 1.50; the distributors were obligated to pay the tax.

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The plaintiff referred to a ruling by Germany’s Bundesverfassungsgericht (Federal Constitutional Court) in 1998, according to which the packaging tax on disposable packaging introduced by the city of Kassel in 1991 violated the federal waste law in force at the time. In addition, it pointed out that it was not possible to pass on the tax to customers, as they would not accept corresponding price increases. Furthermore, the restaurant operator argued that she was already paying a licence fee for her participation in the Dual System waste management scheme.

Tübingen’s mayor Boris Palmer regretted the decision of the VGH. The tax works in practice, he said. One month after its introduction, the amount of waste within city limits had decreased by 15% compared to the previous year. Palmer finds the argument of the VGH unconvincing that Tübingen levies a tax on local consumption even though to-go coffee or hot pizza might be consumed elsewhere: “The reality of life does not involve buying a cappuccino to go in the pedestrian zone in Tübingen and driving all the way to Reutlingen with it!”

In a municipal council meeting on 28 April 2022 the municipal administration of Tübingen decided that the city does not want to accept the judgment of the Federal Administrative Court (VGH) on the packaging tax, and is appealing against it.

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In the view of Deutsche Umwelthilfe (DUH, Berlin; www.duh.de), making disposable tableware more expensive is one of the most effective measures against the flood of waste. In response to the VGH ruling, DUH called on Germany’s federal environment minister Steffi Lemke to introduce a nationwide levy of at least 20 cents on disposable to-go packaging by 1 January 2023.

“A few weeks ago in Nairobi, Environment Minister Steffi Lemke promised to take effective action against plastics pollution in our environment. Now she has the opportunity to do so,” said DUH federal director Jürgen Resch. According to DUH, McDonald’s generated almost 51,000 t of packaging waste in Germany in 2019.

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