German Packaging Act - New obligations for transport packaging etc. since 7/1/2022.

© Tiger Lily

Have you thought of everything in this respect?
 
The advisory practice in one of the legal focal points of the author makes it obvious that many companies, even very large ones, are not aware that new obligations for transport packaging, but also for other types of packaging, apply since 7/1/2022.
 
These are presented below and, in addition to the need for action, possibilities are also shown for averting some of these obligations in a legally secure manner - for example via general terms and conditions.
 
If these obligations are violated, there is not only the threat of fines (Zentrale Stelle or competent federal state authority) and warning letters (public packaging register).
 
 Rather, this can result in considerable practical effort and costs. This applies in particular to disposal at the points of generation of the packaging waste and the annual obligations to provide evidence.

1. Extended registration obligation for the first distributor of all types of packaging

Since 7/1/2022, there is an extended registration obligation for first distributors (in particular manufacturers and importers) of packaging filled with goods. This now applies to all types of packaging.
 
The reason for this is the new version of Section 9 (1) sentence 1 of the Verpackungsgesetz (German Packaging Act, hereinafter VerpackG). According to this, manufacturers of all packaging filled with goods must register with the Zentrale Stelle before placing it on the market in Germany.
 
Until 6/30/2022, this obligation only applied to packaging subject to system participation, i. e. sales packaging and secondary packaging filled with goods, which typically accumulates as waste at the private end consumer and must participate in a system.

In the meantime, however, this obligation also applies to

- sales and secondary packaging that does not typically accumulate as waste at private final consumers;

- sales and secondary packaging that is not compatible with the system;

- sales packaging containing pollutants;

- transport packaging;

- deposit-liable disposable beverage packaging (deposit-free disposable beverage packaging is subject to system participation);

- reusable packaging.

The extended registration obligation is also a highly personal obligation. It is not possible to commission third parties (cf. Section 35 (1) sentence 2 VerpackG).

This registration obligation can be fulfilled with manageable effort in the so-called packaging register LUCID of the Zentrale Stelle.

2. Extended obligation to provide evidence for the first distributor of all types of packaging

However, it is often overlooked that since 7/1/2022 an extended annual obligation to provide evidence (data reporting) also applies to the first distributor of packaging. This also applies to all types of packaging.

The reason for this is the new version of § 15 para. 3 sentence 3 VerpackG. According to this, manufacturers of all packaging filled with goods must provide annual evidence of compliance with the take-back and recovery requirements.

Until 6/30/2022, this obligation only applied to sales and secondary packaging that is incompatible with the system and sales packaging of pollutant-containing products.

This extended obligation to provide evidence applies to manufacturers and subsequent distributors in the supply chain who take back such packaging and are therefore obliged to reuse or recover it (cf. Section 15 (3) sentence 1 VerpackG).

Now, the obligated companies might think that they are not affected at all by the new legal situation because in practice - as is generally the case - they do not take back such packaging (which is not subject to system participation) at all. Rather, this packaging has always been disposed of on site at the (non-private) end consumer (so-called site disposal), for which the end consumers bear the costs.

Caution! This does not change the fact that the principle applies by law that manufacturers and subsequent distributors of such packaging waste are obliged to take it back free of charge at the place where it is actually handed over or in the immediate vicinity, to recover it and to provide evidence of this (cf. § 15 para. 1 sentence 1 and § 15 para. 3 sentence 3 VerpackG).

In addition to corresponding demands by the end consumers, which would have to be fulfilled, there is also the threat of their asserting claims for reimbursement of costs for site disposal.

Even more caution is required if your company is obliged to file a so-called declaration of completeness because the so-called quantity thresholds are exceeded (cf. § 11 para. 4 sentence 1 VerpackG). Within this framework, information must also be provided on sales and secondary packaging placed on the market, which typically does not accrue as waste at the private end consumer (cf. § 11 para. 2 sentence 1 number 2 VerpackG) and on compliance with the recovery requirements (Section 11 (2) sentence 1 no. 6 VerpackG).
Furthermore, the competent authorities may demand the filing of a declaration of completeness "at any time", i.e. even if the so-called quantity thresholds are not met (cf. § 11 para. 4 sentence 2 VerpackG),
 
For these reasons, these - legal! - obligations should be averted in a legally secure manner, for example by means of general terms and conditions.
 
 As manufacturers or distributors of such packaging, they are also legally entitled to reach divergent agreements with the customer as the subsequent distributor or end consumer in the supply chain on the place of return of such packaging waste and the costs of recovery (cf. Section 15 (1) sentence 4 VerpackG; this does not apply to private households).
 
However, it is crucial that a legally secure formulation is chosen (in writing, for reasons of evidence).
 
If this is done, it is the understanding of the author of the legal provisions that the registration obligation alone remains.
 
 Should the competent federal authority nevertheless demand annual proof, only the packaging placed on the market would have to be documented, because no take-back and recovery takes place due to the legally secure wording.

3. Summary

Practice makes it obvious that many companies are not aware that new obligations for transport packaging, but also for other types of packaging, apply since 7/1/2022.

 In addition to the - mandatory - registration obligation, this applies in particular to the extended obligation to provide evidence.

By law, the principle applies that manufacturers and subsequent distributors of such packaging waste are obliged to take it back free of charge at the place where it is actually handed over or in the immediate vicinity, to recover it and to provide yearly evidence of this.

For these reasons, these - legal - obligations should be averted in a legally secure manner, for example by means of general terms and conditions.

However, it is crucial that a legally secure formulation is chosen (in writing, for reasons of evidence).

Of course, you can also draw the attention of other affected companies to this legal tip.

I will be happy to assist you in clarifying questions and problems in connection with the Verpackungsgesetz (German Packaging Act) and other areas of law which are among my main areas of expertise.

I would like to ask potential clients to describe and communicate their need for advice using the message function here or by e-mail - including your telephone number, if you like. I will then get back to you as soon as possible.

Andreas Hering
Rechtsanwalt
German lawyer

Member of www.anwalt.de since 01/2023.