Per-machine amusement tax unconstitutional (BVerfG 2009): Allegations, Court Orders and Status

What this case is about

BVerfG 1 BvL 8/05 is a decision (Beschluss) of the Bundesverfassungsgericht, First Senate, dated 4 February 2009, on the per-machine amusement tax of the Free and Hanseatic City of Hamburg (case GL-DE-0540). The tax charged a fixed amount per gaming machine, the Stückzahlmaßstab, under the Hamburg Spielgerätesteuergesetz.

The case reached the court as a referral by FG Hamburg on 26 April 2005 (VII 293/99), in a dispute brought by a gaming machine operator. The questions were Article 3 paragraph 1 and Article 105 paragraph 2a of the Grundgesetz. It is one of the constitutional rulings listed under Gambling Tax Litigation.

Who is covered

The ruling affects operators of gaming machines and the municipalities and states that tax them. It does not involve players, and it is not a class action.

The court held that taxing machines by a fixed amount per machine violates the equality principle now that stakes and takings can be recorded electronically.

Section 4 paragraph 1 of the Hamburgisches Spielgerätesteuergesetz is incompatible with Article 3 paragraph 1 of the Grundgesetz. The competence of the Länder for such local taxes is unaffected. More German cases are collected under Gambling Lawsuits in Germany.

Is there a payout?

No payout exists in this case. It is a constitutional review of a tax rule, and the record shows no fund, no settlement and no claim process for players.

Filing a settlement claim is free wherever a claim exists, but none exists here. GamblingLawsuits.org is not a law firm and not a claims administrator.

What the court decided

The court decided on 4 February 2009 that the per-machine tax standard is unconstitutional because it ignores what machines actually take in. As of 14 November 2026 the decision is final, and the record shows no next hearing.

The decision is published as BVerfGE 123, 1. Municipalities reacted by switching to a Vergnügungssteuer based on revenue, which produced the next wave of litigation.

Why it matters

The ruling is the starting point for German machine taxation. Once a per-machine amount fell, local taxes moved to the Einspielergebnis, the revenue of the machine, and courts then had to decide how far those taxes may go.

Settlement payments in other gambling cases raise a different tax question, covered in Are Gambling Settlement Payments Taxable?.

Questions people ask

What did the BVerfG decide in 1 BvL 8/05?

On 4 February 2009 the court held that Hamburg's per-machine tax violates the equality principle in Article 3 paragraph 1 of the Grundgesetz.

Can German states still tax gaming machines?

Yes. The decision leaves the Länder's competence for such local taxes unaffected. It only rejects the fixed per-machine standard.

What happened after the decision?

Municipalities switched to a revenue-based Vergnügungssteuer. That led to later rulings of the Bundesverwaltungsgericht, listed below.

Related cases

• BVerwG, Urteil vom 14.10.2015, 9 C 22.14: the change from the per-machine standard to the Einspielergebnis (status: judgment).
• BVerwG, Beschluss vom 26.06.2026, 8 BN 2.26: a Vergnügungssteuer of 25 % with a minimum tax of EUR 425 per machine (status: judgment).