Federal Constitutional Court: Appeal against tobacco tax for e-cigarettes unsuccessful

A constitutional complaint against the tobacco tax on so-called liquids for e-cigarettes was unsuccessful at the Federal Constitutional Court. The First Senate did not accept the complaint from affected consumers and manufacturers for decision, as the court in Karlsruhe announced. It is inadmissible. (Ref. 1 BvR 1177/22)

When you smoke an e-cigarette, liquids are heated and the vapor produced is inhaled. According to the law to modernize tobacco tax law, substitutes for tobacco products have also been subject to tobacco tax since July 2022 – including liquids for e-cigarettes.

In contrast, several smokers and manufacturers turned to the Karlsruhe judges. They argued that consumers could also make the liquids themselves from freely available ingredients without paying tobacco tax. The tax rate also does not sufficiently reflect the lower health risk of e-cigarettes compared to smoking tobacco.

Complaint not sufficiently substantiated

However, their argument was unsuccessful at the highest German court. Among other things, the court said the complainants would have had to explain why legal recourse through the financial courts was not open to them. Because they are primarily responsible. It also remained unclear whether the tax burden really falls on the complainants.

With regard to the supposedly lower health risk of e-cigarettes, the Senate also did not follow the complainants. When it comes to designing behavior-controlling taxes, the legislature has a lot of leeway. The dangers posed by the consumption of e-cigarettes were assessed differently by experts during the legislative process. The complainants did not address this sufficiently either.