The German Packaging Act [Verpackungsgesetz – VerpackG] has been in force since 1 January 2019 and replaced the German Packaging Regulation [Verpackungsverordnung – VerpackV] in force up to then. It applies to all forms of packaging and is a special law (lex specialis) clarification of responsibility for products enshrined in Sec. 23 of the Life Cycle Management Act [Kreislaufwirtschaftsgesetz – KrWG].
The Packaging Act was slightly adjusted for the first time this year by the First Amending Act [Erste Änderungsgesetz], which entered into force on 27 January 2021. Already before entry into force of this Amending Act, the Federal Cabinet already adopted an extensive amendment to the Packaging Act introduced by Federal Environment Minister Svenja Schulze. The Bundestag (Federal Parliament) and the Bundesrat (Federal Council) now have to decide on the planned amendment to the Packaging Act. The Act – at least in substantial parts – is slated to take effect on 3 July 2021.
The First Act Amending the Packaging Act provided for only minor amendments, particularly with regard to plastic carrier bags. The newly introduced Sec. 5 Para. 2 of the Packaging Act now bans final distributors from putting plastic carrier bags into circulation intended to be filled with goods at the point of sale and having a wall thickness greater than 50 micrometres.
The purpose of the draft bill adopted on 20 January 2021 is to implement the requirements of the Single-Use Plastics Directive (EU) 2019/904 as well as Article 8a of the amended EU Waste Framework Directive (2008/98/EC) with regard to packaging in conjunction with Article 7(2) of the EU Packaging Directive (94/62/EC). The aim pursued with the draft bill is to further enhance the ecological provisions of the Packaging Act. With the amendment, resource management and resource efficiency are to be further improved. The two key aims of the planned amendment are promoting the options for reusing packaging and expanding the mandatory deposit requirement.
Essentially, the draft bill provides that reusable packaging and post-consumer recycled materials (PCR) are to be promoted, with the focus being placed particularly on packaging reuse solutions in the “to-go” sector. For example, food and beverage providers are to be required to offer their products also in reusable packaging. In addition, the mandatory deposit requirement is to be expanded to nearly all non-returnable bottles such as fruit juice bottles. And for the first time, the amount of PCR going into the production of non-returnable plastic beverage bottles is to be at least 25% from 2025 and at least 30% from 2030.
The draft bill also provides for some new definitions and introduces the concept of “fulfilment service providers” which assist distributors in areas such as the storage, packaging and shipping of goods. However, online merchants are also affected by the planned changes: in future, all types of packaging – including transport packaging – which are not subject to mandatory system participation are to be registered with the German Central Agency Packaging Register (ZSVR). According to the explanatory memorandum for the draft bill, the purpose of expanding registration obligations to all packaging manufacturers is to improve and promote the framework of effective monitoring and enforcement of existing and newly created obligations of extended producer responsibility.
For now it remains to be seen whether the draft bill will be passed in its present form. As things now stand, though, the provisions on product responsibility are almost certain to be further clarified and tightened with the extensive amendments being planned. In future also, interpreting and applying the provisions of the Packaging Act in detail will give rise to legal uncertainties, not least given the rare cases in which the German courts have dealt with this subject.
(Draft Bill Implementing Requirements of the Single-Use Plastics Directive and the Waste Framework Directive and in the Packaging Act and in other legislation, accessible at: Gesetzentwurf der Bundesregierung zur Umsetzung von Vorgaben der Einwegkunststoffrichtlinie und der Abfallrahmenrichtlinie im Verpackungsgesetz und in anderen Gesetzen (bmu.de) and Draft Bill [Beschlussfassung] of the Federal Council [Bundesrat] of 5 March 2021, Printed Matter 64/21)
Dr Ronald Steiling, Lawyer
Dr Stefanie Ramsauer, Lawyer
both of Hamburg