Federal Constitutional Court Declines to Hear Challenge Against E-Cigarette Tax

The Federal Constitutional Court in Karlsruhe has decided not to hear a complaint regarding the tobacco tax imposed on liquids used in e-cigarettes. The court announced that the complaint, submitted by consumers and manufacturers of e-cigarettes, did not meet the necessary criteria for consideration (Case No. 1 BvR 1177/22).

E-cigarettes operate by heating liquids, commonly referred to as e-liquids, which can be inhaled as vapor. These liquids are available in both nicotine and non-nicotine varieties. Many e-cigarette devices allow users to refill their tanks with either pre-mixed or custom-blended liquids, with the option of adding nicotine shots as well. Aside from nicotine, the components of these liquids can be purchased freely outside of the e-cigarette market.

The tax on e-liquids was implemented in July 2022, leading to a restriction on the distribution of non-taxed liquids in Germany. This tax is set to gradually increase each year until 2026, currently standing at 20 cents per milliliter. The Federal Ministry of Finance indicated in March 2021 that this tax would be adjusted to reflect changes in the tobacco market and consumption patterns, following the passage of the relevant legislation by the previous governing coalition.

It is important to note that the Federal Constitutional Court did not make a substantive ruling on the merits of the tax itself. The court found that the complaint was inadmissible, as it failed to demonstrate why the plaintiffs did not seek recourse through the appropriate tax courts. Additionally, the court noted that the plaintiffs did not sufficiently explain how their rights under the general equality clause were allegedly violated.

The court emphasized that lawmakers possess broad discretion when it comes to behavioral taxes. During the legislative process for this tax, various experts were consulted, who presented differing assessments regarding the health risks associated with e-cigarettes compared to traditional tobacco products. The plaintiffs did not adequately address these expert opinions in their challenge.

This ruling has significant implications for the e-cigarette market and the ongoing debate surrounding public health, taxation, and consumer rights. As e-cigarettes continue to gain popularity as an alternative to traditional smoking, the legal landscape surrounding their regulation and taxation remains a critical issue for consumers and manufacturers alike.