Packaging and Packaging Waste Directive

Whereas the EPR is very clearly ruled in the Waste Directive the responsibilities laid down for producers in the Packaging and Packaging Waste Directive are unclear²⁰⁵. The Directive states that “Member States shall ensure that…extended producer responsibility schemes are established for all packaging…²⁰⁶” but there are no defined obligations for the duties of EPR schemes. In addition, what obligations the Member States can delegate to producers remain open to questions, possibly due to the choices the Member States are able to make at the

201 Waste Directive art. 8a(5).

202 Waste Directive art. 8a(6).

203 See the subchapter 2.1.3.

204 Development of Guidance on Extended Producer Responsibility (EPR) 2014, p. 86.

205 See also Van Calster 2015, p. 145.

206 Packaging and Packaging Waste Directive art. 7(2).

national level, and therefore this chapter goes through some issues which might be relevant for EPR in the Directive.

The aim of the Directive is to harmonize national measures concerning the management of packaging and packaging waste. The harmonization focuses on prevention of packaging and packaging waste on environment.²⁰⁷ The Directive obligates the Member States to ensure preventative measures in order to “prevent generation of packaging waste and to minimize the environmental impact of packaging”. These measures can be implemented through EPR schemes which should include proper incentives: such incentives can incorporate

“differentiated financial contributions for reusable packaging”.²⁰⁸ The Directive covers all kinds of “packaging placed on the market” of the Union “and all packaging waste”²⁰⁹. As for the definition of packaging the Directive regards packaging widely: packaging made of all kinds of materials and having its origin, for example, in industry or household does not make any difference. In other words, the Directive is not product-oriented, but rather accounts all packaging under the Directive.

However, the Directive makes difference to “composite packaging” which means

“…packaging made of two or more layers of different materials which cannot be separated by hand and form a single integral unit, consisting of an inner receptacle and an outer enclosure, that is filled… as such.²¹⁰” How this concept of composite packaging can be explained in a more understandable way cannot be found in the Directive although Recital 14 notes that in order to raise recycling levels in the EU “attention should be paid to specific packaging waste streams”, for example, to composite packaging waste. When compared to the definition of a single-use plastic product²¹¹ there seems to be no difference between composite packaging and the definition of a single-use plastic product when it comes to the component parts of a product.

207 Packaging and Packaging Waste Directive art. 1(1).

208 Packaging and Packaging Waste Directive art. 4(1) and recital 4.

209 Packaging and Packaging Waste Directive art. 2(2).

210 Packaging and Packaging Waste Directive art 3(2b).

211 See the subchapter 4.2.2.

EPR has a role in the Packaging and Packaging Waste Directive, although the Directive refers to the Waste Directive²¹² and therefore the responsibilities are the same in both Directives. Prevention of packaging waste can occur through EPR schemes²¹³ and the Member States must ensure that those schemes are “established in accordance with Articles 8 and 8a” of the Waste Directive²¹⁴ by the end of 2024²¹⁵. The EPR schemes are obligatory but leave room for the Member States to implement schemes. As in the Waste Directive the basis for EPR in the Packaging and Packaging Waste Directive is in the principle of polluter pays since “as the amount and type of packaging used generally depends on choices made by producer rather than the consumer…²¹⁶”.

The Directive does not define producer, it can be found in the Waste Directive, but it defines an economic operator as “suppliers of packaging materials, packaging producers and converters, fillers and users, importers, traders and distributors, authorities and statutory organizations”²¹⁷. Economic operators include all involved in the packaging value chain which can make the meaning of producer rather difficult. In the judgement of the court in the case Plato Plastik Robert Frank GmbH concerning packages the word producer relates to the goods to be packaged, not to the packaging or the packaging material: producer refers to the producer of the goods, not the manufacturer of the packaging products²¹⁸.

Although the Plato Plastik Robert Frank GmbH case concerned plastic bags²¹⁹ – which were found to be packages – the Court was also asked of the definition of producer²²⁰. The answer was short and clear – producer means the producer of the goods – however, the opinion of the Advocate General of the same case discussed and argued the definition more deeply. The

212 Packaging and Packaging Waste Directive art.3(2c). The Waste Directive art.3(21) states “…measures taken by Member States to ensure that producers of products bear financial responsibility or financial and organizational responsibility for the management of the waste stage of a product’s life cycle”. See the subchapter 3.1.

213 Packaging and Packaging Waste Directive art. 4(1)

214 See the subchapters 3.1.1 and 3.1.2.

215 Packaging and Packaging Waste Directive 7(2).

216 Packaging and Packaging Waste Directive recital 20.

217 Packaging and Packaging Waste Directive art. 3(11).

218 C-341/01 para 73 and 74.

219 Since 2015 plastic bags are covered by a separate directive (Directive (EU) 2015/720 of the European Parliament and of the Council of 29 April 2015 amending Directive 94/62/EC as regards reducing the consumption of lightweight plastic carrier bags).

220 C-341/01 para 23.

argumentation is interesting when comparing to the producer definition of the SUPD. He thought it was necessary to determine whether producer includes the person who puts the goods together with or also the undertaking which manufactures the product intended to serve as packaging. His first impression was that since producer is included in the definition of packaging they cannot be understood separately.²²¹ The Advocate General argued that functions of packaging referring to transport, protection and presentation of goods must all be fulfilled but the question of producer is more complicated: “Is he the producer of purchased goods, is he the person who puts the purchased goods together with the packaging or is he the person who manufacturers the packaging products?”²²² The Advocate General came to the conclusion that definition of packaging refers to functions of package and producer is a part of these functions since a producer delivers or transports goods in a package to the consumers or users of goods. Therefore “producer must be understood to mean the person who manufactures the goods for which packaging will subsequently be necessary”.²²³

Article 7 obligates Member States to set up systems to provide for the return and/or collection of used packaging and packaging waste from consumer and other final users in order to channel it to the most appropriate waste management alternatives. This would include reuse and recovery including recycling. The systems must “be open to the participation of the economic operators” encompassing public authorities.²²⁴ The obligation in rather general, however, Article 6 sets targets for recovery and recycling for the Member States according to the objectives of the Directive. The targets which are based on the material weight of all recycled packaging waste for plastic and paper and carboard are presented in the table one showing that the targets increase until 2030. However, there are no special targets for composite packaging waste.

221 C-341/01 Advocate General para 36-37.

222 C-341/01 Advocate General paras 41 and 51.

223 C-341/01 Advocate General paras 52-53.

224 Packaging and Packaging Waste Directive art 7(1).

Table 1. The minimum targets by weight for recycling of plastic and paper and cardboard.

target year plastic paper & cardboard

2025 50 % 75 %

2030 55 % 85 %

For the attainment of the targets there are rules on the calculation based on the idea that packaging waste generated in a Member States “may be deemed to be equal to the amount of packaging placed on the market in the same year within that Member State”. Therefore, the Member States are obligated to “calculate the weight of packaging waste generated and recycled in a given calendar year”. The “weight of the packaging waste recycled is measured at the output of any sorting operation”.²²⁵ These performance goals are presented in metrics, but since the purpose of this paper is not to research the rules on the calculation, deeper analysis of the rules on the calculation is not done, only the main idea is presented here. The targets can be understood as minimum recovery and recycling targets with the intention of motivating the Member States to reduce packaging waste. Therefore, the rules on calculation require producers to dispose or recycle the packaging waste used for the products. The other alternative is that the producers can contract out the treatment to reprocessors and bear the costs.²²⁶

A Member State can postpone the deadlines of 2025 and 2030 if certain conditions according to Article 6(1a) are met. For paper and cardboard this would require, for example, that the recycling rate is below 60 per cent in both target years. If postponing happens the Member State will notify the Commission by filling an implementation plan which must include

“information on funding for waste management in line with the polluter pays” principle²²⁷. The Directive does not include any penalties for not reaching the targets: the Member States must ensure that packaging fulfills essential requirements such as packaging is manufactured in way that its volume and weight are limited to the minimum. In addition, the Member States must report to the Commission, for example, of packaging volumes of which the Commission publishes a report²²⁸ but there is no mention of penalties in a case of not

225 Packaging and Packaging Waste Directive art. 6a(1)a and 6a(2).

226 Berger and Nagase 2018, p. 205.

227 Packaging and Packaging Waste Directive art. 6(1a)d and Annex IV point 6.

228 Packaging and Packaging Waste Directive art. 9, art. 12(3c) and Annex II point 1.

reaching the targets. Nor the Directive states anything about the penalties which a Member State can set to the EPR schemes not fulfilling its duties.

4. ALERT FIBRE-BASED PACKAGING SECTOR: HERE COMES