Obligations of EPR Schemes

The Commission pointed out in 2018 that “private sector together with national and regional authorities” need to be mobilized in order to make circular economy more effective²⁸⁴. The SUPD is built around producer responsibilities by adding obligatory responsibilities and by leaving other actors aside. Article 8(1) of the SUPD obligates the Member States to ensure that EPR “schemes are established for all single-use plastic products listed in Part E of the Annex” of the Directive: these products have been presented in the previous chapter. Further requirements are that the products are placed on the market of the Member State and that the

281 Diaz-Méndez 2017, p. 3, Janssen et al. 2018, p. 32, van der Horst et al. 2011, p. 600.

282 See subchapter 3.2.

283 C(2021) 3762 final, p. 11-12 and SUPD recital 10.

284 COM(2018) 28 final, p. 1.

EPR schemes are established “in accordance with Articles 8 and 8a” of the Waste Directive.

If there are already EPR schemes established before July 2018 in the Member State regarding the products listed in the Part E of the Annex the Member State must apply necessary additional measures for the schemes by 2023. If there are no EPR schemes regarding the products the Member States must apply those measures by the end of 2024.²⁸⁵

If the waste management targets set out in Articles 4 and 8 of the SUPD are achieved, the Member State can “transpose the provisions of Articles by means of agreements between the competent authorities and the economic sectors” concerned²⁸⁶. In spite of the mode of implementing minimum requirements for EPR schemes either by a “legislative act or by means of agreements under the SUPD”, requirements of schemes should apply to EPR. The

“relevance of some requirements depends on characteristics of the product”.²⁸⁷ Article 4 states that it is the Member State’s obligation to reduce the consumption of cups for beverage and food containers which are listed single-use plastic products both under Part A of Annex regarding consumption reduction and Part E regarding the EPR. For these single-use plastic products there are quantitative measures expressed in Article: the baseline for measures in the consumption of the products in 2022 and the reduction must be done by 2026 compared to 2022.²⁸⁸ Ekroos et al. raise a relevant question whether the reduction refers to the amount of quantity as numbers or to the reduction of plastic volume. Since the recyclability rates of materials are ruled in the Packaging and Packaging Waste Directive they assume that the reduction aims to reduce plastic.²⁸⁹

The reduction can also be understood as reduction in numbers since on the top of the waste hierarchy is the preference of prevention of waste²⁹⁰. The Member State must report to the Commission annually of the reduction of consumption of cups for beverages and food containers²⁹¹. Both by changing consumption habits and the extent of Union legislation are possible factors which could reduce consumption of these products. Based on the Impact

285 SUPD art. 17(1).

286 SUPD art. 17(3).

287 SUPD recital 22.

288 SUPD art. 4(1).

289 Ekroos et al. 2019, p. 107-108.

290 Waste Directive art. 4.

291 SUPD art. 13(1)a.

Assessment²⁹² a scenario which included going deeper into changing consumer behavior was chosen for the purpose of the SUPD²⁹³. The Member States are left with an appropriate implementation and data collection methods depending on local conditions, however, the targets only aim “to reduce the consumption of cups for beverages and food containers”²⁹⁴. When manufactured from fibre-based material neither were among the top 10 most found items on the European beaches²⁹⁵.

The waste management targets set out in Article 8 of the SUPD regarding EPR are unclear when it comes to fibre-based packaging sector. Article reminds of “national minimum annual collection rate” for waste fishing gear²⁹⁶ but nothing for products listed in Part E of Annex (excluding cups for beverages and food containers which are regulated also under Part A). Recital 6 of the SUPD utters that the recycling targets of the Packaging and Packaging Waste Directive is one example of waste management targets in the Union but these targets are not sufficient regarding marine litter. Nevertheless, Article 8(5) of the SUPD states that the Member States must define the roles and responsibilities of all relevant actors who are involved in EPR schemes: the definition must be in ”line with the Packaging and Packaging Waste Directive”. Roles and responsibilities are important, for example, when the Member States report to the Commission of fulfillments of requirements stated in the SUPD and other Directives involving EPR.

Producers of the products listed in the section I of Part E of the Annex must cover the costs of the EPR. Products in the section I are the products discussed in the subchapter 4.3.1. The SUPD lists additional costs but the original cost requirements for the SUPD’s EPR come from the Waste and the Packaging and Packaging Waste Directives.²⁹⁷ The problematic issue with the EPR costs is that the Member State is the one which must ensure that the costs are covered although the principle of polluter pays is in the basis of both Directives²⁹⁸. This

292 SWD(2018) 254 final. Commission staff working document. Impact Assessment. Reducing Marine Litter:

action on single use plastics and fishing gear. Accompanying the document Proposal for a directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment.

293 COM(2018) 340 final, p. 13.

294 COM(2018) 340 final, p. 3 and 7, SUPD art. 4(1).

295 See the subchapter 4.1.

296 SUPD art. 8(8).

297 SUPD art. 8(2).

298 Waste Directive art. 14 and Packaging and Packaging Waste Directive art. 15.

means that implementation of the Directives can be done in different ways keeping in mind that according to the TFEU the Member States have national autonomy on the environment²⁹⁹.

The Waste Directive as a framework for EPR schemes rules of minimum requirements also regarding the costs leaving the decision to the Member States: a Member State can decide that the responsibility for arranging waste management is to be borne partly or wholly by the producer of the product³⁰⁰. The potential costs which may fall for a producer under the Waste Directive are, first of all, related to waste management targets and reporting system³⁰¹. Secondly, they are involved in collection and management of waste, in the necessary means of fulfilling EPR obligations, and in self-control mechanism³⁰². Thirdly, costs may conclude

“the financial contributions paid by producers to comply” the EPR obligations³⁰³. These costs are covered in the subchapter 3.1.2.

The Packaging and Packaging Waste Directive does not require any additional costs, it only refers to polluter pays principle and states that the “Member States may in accordance with”

the principle adopt measures to achieve the objectives³⁰⁴ of the Directive³⁰⁵. Furthermore, the Directive states that the costs to clean litter are “an unnecessary economic burden” for society³⁰⁶. However, the Annex IV sets an implementation plan regarding the rules of calculation of the attainment of the targets ruled in Article 6a(1). The plan requires

“information on funding for waste management in line with the polluter pays” principle³⁰⁷.

The SUPD also sets additional costs for EPR if a Member State has not included those costs in the required costs under the implementations of the Waste and Packaging and Packaging Waste Directives. These costs involve the same (fibre-based) products which are listed in

299 TFEU art. 193 states that the Member States can introduce more stringent protective measures regarding environmental protection.

300 Waste Directive art. 15(3).

301 Waste Directive art. 8a(1)b and 8a(1)c.

302 Waste directive art. 8a(3)a, 8a(3)b, 8a(3)c and 8a(3)d.

303 Waste Directive art. 8a(4)a.

304 See chapter 3.2.

305 Packaging and Packaging Waste Directive art 15.

306 Packaging and Packaging Waste Directive recital 8.

307 Packaging and Packaging Waste Directive Annex IV point 6.

the Section I of Part E of the Annex but there are also costs involving other products, such as tobacco products with filters and certain balloons.³⁰⁸ Article 10 of the SUPD rules of awareness raising measures by requiring the Member States to inform consumers and to incentivize them to responsible consumer behavior in order to reduce litter from the named products. The information must firstly include the availability of reusable alternatives, reuse systems, and waste management options for the products. Additionally, there must be information of best practices in sound waste management.³⁰⁹ The sound waste management means management which does not endanger human health nor environment, in particularly, for example, water³¹⁰. Secondly, the information must comprise impact on littering and other inappropriate waste disposal of those listed single-use products on the environment and on the sewer network³¹¹. However, the latter refers strongly to other products listed in the Part G of the Annex than the fibre-based packaging products involved in this paper.

Besides awareness raising measures, additional costs have to cover “costs of waste collection for products” which “are discarded in public collection systems” as well as “transport and treatment of that waste”. This requirement is also including the infrastructure and its operations. Additionally, the producers need to pay for the “costs of cleaning up litter” which is resulted from “the products and the subsequent transport and treatment of that litter”. ³¹² Covering the necessary costs of waste management and cleaning up litter together with

“costs of awareness raising measures” are linked directly to the polluter pays principle³¹³. However, the Directive does not require setting up a “separate collection system” for the products listed in Section I of the Part E of the Annex since the separate collection is needed only for single-use plastic bottles³¹⁴. There is no information or clue in the Directive which areas should be cleaned, how often and why: should the cleaning obligation apply only on seashores since the purpose of the Directive is, most of all, to reduce impact of certain plastic products on aquatic environment or should it cover all areas of the Member States?

Moreover, since the Directive expands EPR to cleaning up litter and to managing mixed

308 SUPD art 8(2) and Part G of the Annex of the SUPD.

309 SUPD art. 10(a).

310 Waste Directive art. 13.

311 SUPD art. 10 (b) and 10(c).

312 SUPD art. 8(2)b and 8(2)c.

313 SUPD recital 21.

314 SUPD art. 9(1).

waste from public collection systems the lines of responsibilities are not clear between, for example, producers, consumers, and local authorities.³¹⁵

The fees covering the above-mentioned costs cannot exceed the charges which “are necessary to provide the services in a cost-efficient way”. The costs of cleaning up litter are

“limited to activities undertaken by public authorities or” by producers “on behalf of” public authorities. The costs, calculated in a proportionate way, must also be transparent between the actors concerned.³¹⁶ This is in line the Waste Directive’s Article 8a(4) regarding costs waste management. Whereas the Waste Directive encourages the Member States to ”create incentives for the waste holders to assume their responsibility to deliver their waste into separate collection” systems³¹⁷, the SUPD does not include any direct incentives for any waste management responsibility. The separate collection system excludes all other single-use plastic products than plastic bottles and as discussed in the subchapter 4.2.2 the recycling of those products while being put into public collection systems is not effective.

In accordance with the Waste Directive each Member State must allow producers from other Member States placing products into the Member State to be treated equally with necessary authorized representative in the Member State. While doing this the “Member State has”

also “a right” to expect of the producer through the representative to fulfill its EPR obligations.³¹⁸

Neither the Waste Directive nor the Packaging and Packaging Waste Directive state of any direct sanctions for breaking the regulations. The theory of EPR includes penalties as a threat and a deterrent for producers to fulfill their obligations³¹⁹. The SUPD rules of punishments.

It is the Member State’s obligation to lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to the Directive. The penalties must be effective, proportionate and dissuasive leaving the Member States to decide what they

315 Ekroos 2019, p. 70 and 105.

316 SUPD art. 8(4).

317 Waste Directive art. 8a(2).

318 SUPD art. 8(6) and 8(7).

319 See the subchapter 2.2.5.

are.³²⁰ Since the EPR is obligatory for certain products in the SUPD, the penalties involve also producers of those products.

320 SUPD art. 14.