Proposal of the European Commission for a Regulation on Packaging and Packaging Waste
Long title, example: (Arial, 20 pt, bold)
Draft bill/ Government draft
Act to modernize the structure of network charges
Federation of German Industries
Status: 25.04.2023
Status: 30 03.2023
Table of contents
1. Realize internal market for circular packaging management.........3
2. Use legislative process for practical corrections ...........................5
2.1 Recyclability and sustainable packaging design as the basis for closedloop recycling (Art. 6) 5
2.2 Create reliability in plastics recycling markets (Art. 7)..........................6
2.3 EU-wide uniform packaging labeling required for circularity in the internal market (Art. 11 and 12)...........................................................7
2.4 Waste prevention: Reuse, minimization and product bans must bring demonstrable environmental benefits (Art. 9, 10, 21, 22, 26 & 38).......9
2.5 Establish extended producer responsibility, collection, deposit and return systems in a practical manner (Art. 41, 43 & 44).....................11
2.6 Adapt specifications for industrial/commercial and repackaging and transport packaging in value chains to reality (including Art. 6, 7, 9, 10, 11, 21, 22, 26 and 38)
1. Realize single market for circular packaging management
On November 30, 2022, the European Commission presented its proposal for a regulation on packaging and packaging waste. The Federation of German Industries (BDI) expressly welcomes and supports the Commission's initiative to create a comprehensive circular economy for packaging in the common single market. In this context, the specifications for the packaging cycle must be in line with the requirements of the five-stage waste hierarchy from Article 4 (1) and (2) of Directive 2008/98/EC (EU Waste Framework Directive). Both European and national legislators are also required to make waste legislation and waste policy fully transparent. The further development of European packaging law provides an opportunity for investments in infrastructures (e.g. collection, sorting and recycling facilities) and new business models in terms of resource and climate protection. This must be the guiding principle in the legislative process.
The new European legal framework is intended to replace the Packaging Directive of 1994 (last revised with Directive 2018/852/EU). As early as 1994, with the adoption of the first Packaging Directive, the European Commission pursued the goal of creating uniform rules for the sustainable design as well as the marketing and recovery of packaging in the EU. In the past decades, the EU member states have established numerous national regulations on the handling of packaging and packaging waste, which on the one hand generate considerable administrative and logistical effort in companies and on the other hand stand in the way of the emergence of a common understanding of sustainable packaging solutions and the establishment of a pan-European high-quality infrastructure for packaging cycles. Based on this realization, the European Commission has for the first time chosen the instrument of a regulation with direct effect to ensure harmonized regulations for packaging and packaging waste in the EU. For clear responsibilities and enforcement of the regulation, clearly delineated definitions are also needed, including for the "producer", the "manufacturer" and the "distributor" of packaging. In addition, in the current Commission proposal, cross-references to definitions in legal acts that have not yet been adopted, such as the Ecodesign Regulation, create considerable legal uncertainty.
BDI expressly welcomes the transition from a directive to a regulation for the European single market. EU-wide harmonized and thus uniform packaging law requirements are the basis for the urgently needed planning security for companies for investments in sustainable packaging design, circular
infrastructure and for ensuring a high level of environmental protection throughout the European Union. The single market competence from Art. 114 TFEU correctly serves as the legal basis for this, and as has been the case for the Packaging Directive. In the future, however, limited degrees of freedom should also be made possible for the EU Member States, but exclusively with regard to the waste management requirements for a high level of ecological protection. The requirements on waste management in Chapter VII of the proposed regulation as the only provisions to be considered could in this respect also be based on Article 192 TFEU. For the BDI, the following guiding principles are the benchmark for the establishment of a comprehensive circular economy for packaging in the EU and thus also for the success of the regulation:
- Investment security in high-performance systems for the (separate) collection, sorting and recycling of packaging waste in all member states of the EU
- Uniform specifications for the labeling of packaging for its smooth circulation in the single market and, if necessary, traceability from third countries
- Harmonized and scientifically based sustainability criteria for packaging design incl. financial incentives (e.g. eco-modularisation) for fair competition in the EU
- Enforceable requirements for a functioning market for plastic recyclates incl. early planning security for the calculation of the recycled content and investment security for companies for new recycling structures
- Uncontradictory rules for the prevention, minimisation and reuse of packaging based on scientific findings on the entire life cycle and taking into account the exemptions of the waste hierarchy (Art. 4 para. 2 Waste Directive)
- Comprehensive adaptation of provisions for industrial/commercial packaging, secondary packaging and transport packaging from the B2B sector, in particular with regard to ecological advantageousness according to scientific criteria and legal admissibility (use of recyclates, minimization, reuse in supply chains).
2. Use legislative process for practical corrections
2.1. Recyclability and sustainable packaging design as the basis for closed-loop recycling (Art. 6)
The key point of the article is the requirement that from 2030 all packaging placed on the market must be recyclable. Conversely, packaging that does not meet this requirement may no longer be placed on the market. To this end, criteria for the "design for recycling" (so-called DFR criteria) of packaging are to be developed and serve as a benchmark. To this end, the Commission will adopt delegatedacts to defineDFR criteriafor materials orpackaging. These are to take into account both the composition of the packaging material and state-of-the-art collection, sorting and recycling processes. In addition, weight percentage-based performance levels for the recyclability of packaging are to be introduced (Class A to E).
BDI welcomes the creation of a uniform system for the recyclability of packaging, as it supports the goal of achieving a single internal market for recyclable packaging. However, such criteria must be known in good time before the 2030 regulation comes into force, must be scientifically based and must be developed with the participation of the relevant stakeholders along the entire value chain. Material discrimination must be avoided.
Requirements for practical provisions:
- Uniform DFR criteria and the eco-modularisation of license fees are to be defined by delegated act (Art. 6(4)). However, there is no time limit by which this must be done. Companies urgently need clarity (if possible five years before the regulations come into force) in order to be able to develop packaging and make investment decisions accordingly. In addition, there is a need for separate specifications for industrial/commercial packaging and corresponding secondary packaging and transport packaging, as these are not comparable with packaging from the household sector in terms of technical safety requirements alone and with regard to the respective contents. This must be taken into account in all the individual points listed below (see VI. of this position paper).
- Linking sustainable design via performance levels A to E with producer responsibility fees throughout the EU is in principle correct and reasonable. However, the linkage must be transparent and feasible and based solely on recyclability across all materials (Art. 6(4)).
Linkages between financial contributions and recyclate use for individual materials do not make sense and contradict Art. 7 of the proposed regulation.
- DFR criteria, which are developed based on the packaging design and also taking into account the collection, sorting and recycling structure, ideally require an infrastructure within the EU that is approximately at thesamelevel. Onlyin this way canmaterial cycles actually be closed through the interaction of packaging design and high-quality infrastructure. This must be taken into account in the development of the delegated acts (Art. 6(4) and (8)).
2.2 Create reliability in plastics recycling markets (Art. 7)
Art 7 stipulates the mandatory use of recyclates in plastic packaging with use targets for the years 2030 and 2040, whereby these are not to apply to compostable plastic packaging. Mandatory shares are differentiated for products (e.g. bottles) on the one hand and for material classes (contact-sensitive) on theother. Thesourceofrecycledrawmaterials is basedsolely onso-called post-consumer recyclates. The recyclate content is to be proven per packaging unit in the plastic content By December 31 2026, the Commission is to adopt an implementing act to specify the calculation method for the respective recyclate content. In addition, it is envisaged that the Commission can make adjustments to the recyclate input obligations via delegated act if this is justified, among other things, due to a lack of availability or increased prices for certain recycled plastics. In addition, eight years after the entry into force of the Regulation, the Commission may take measures to propose input obligations for recyclates from other material streams besides plastics.
In the view of BDI, the use targets proposed by the Commission will have a significant impact on the plastics markets well before they come into force in 2030, as companies will have to ensure access to sufficient material of the required quality in their medium-term planning. This can lead to significant problems, especially in the area of plastic recyclates that come into contact with food. The EFSA has so far only approved PET under certain conditions.
Requirements for practical provisions:
The reference point for complying with the obligation to use recyclates (per packaging according to the proposal) and the method for calculating it are closely related and determine the actual developments in the demand for recyclates. Therefore, practicable and
enforceable measurement methods must be defined that also enable proof of the use of recyclate, e.g. per packaging placed on the market by an economic operator, and do not focus on each individual packaging. The planned definition by the end of 2026 is too late for the use obligations from 2030 and the market ramp-up (Article 7 (1), (2) and (7))
The envisaged reservation in the exceptional case of lack of availability and prices of recyclates for the actual obligation to use recyclates requires prioritisation This is because the provision is completely undefined with regard to the determination of this development and its evaluation. A provision is needed that ensures the necessary investment security in the recycling infrastructure and that can simultaneously counteract market distortions. According to the current state of the art, this will be necessary for some types of plastics (e.g. polyolefins) and in particular for contact-sensitive applications, especially for use in food packaging (Art. 7(10))
The mandatory use of plastic recyclates will have a significant impact on the raw material markets. In particular, new recycling infrastructures will have to be established quickly on a large scale to meet the use targets in contact-sensitive packaging applications. In addition, it is urgent to ensure that these effects are also anticipated in the context of possible further recyclate input obligations from other EU legal acts and that SMEs as market participants are also given access to recyclates
2.3 EU-wide uniform packaging labelling required for circularity in the internal market (Art. 11 and 12)
The aim of Art 11 is to establish uniform labelling obligations for packaging in the EU for the first time. 3.5 years after the regulation comes into force, all packaging must be provided with a harmonized label - with the exception of transport packaging (except for e-commerce). The label will provide information on material composition, recycled content, bio-based content and recyclability. The aim is to reduce misleading or confusing information for the end consumer. Furthermore, 4 years after the regulation comes into force, all packaging must be provided with digital labelling (QR codes) that provides information on reusability. The purpose of the digital labelling is to facilitate the calculation of recirculation and tracking of the packaging. The
Commission reserves the right to adopt two implementing acts at a time: First, 1.5 years after adoption on the labelling requirements and 2 years after adoption on the determination of the method for indicating the material composition.
Art. 12 also specifies the marking of collection containers. By 2028, all containers must have clearly visible, legible and permanent markings indicating the material-specific collection of packaging waste. Among other things, this is intended to contribute to an improvement in separate collection and more sorted waste streams in order to improve the quality in recycling.
The BDI expressly welcomes the objective of ensuring the free movement of goods and the functioning of the internal market by means of uniform packaging labels. Distributors, consumers and waste management companies are dependent on a uniform specification in the EU if a European circular economy for packaging is to be created.
Requirements for practical provisions:
Labelling requirements must be fully harmonized within the EU single market. There must be no individual national solutions that impede the free movement of goods. Existing national packaging regulations that undermine the EU internal market must be repealed.
Theharmonisedmarkings onpackaging andwastecollection containers must be designed in such a way that they contain instructions for separate waste collection that are comprehensible to consumers.
In addition to labelling, standardised packaging marking should also include or permit other marking methods (e.g. digital interface, imprinting) if these can be used to meet the standardised specifications for packaging marking.
Even after the labelling requirements come into force, existing packaged products in warehouses without the appropriate packaging labelling must remain marketable. Repackaging stored products would be counterproductive in terms of resource conservation.
2.4 Waste prevention: Reuse, minimisation and product bans must bring demonstrable environmental benefits (Art. 9, 10, 21, 22, 26 & 38)
The proposed regulation stipulates in Art. 38 that member states minimise per capita packaging waste generation by 5 percent by weight by 2030 compared to 2018. This target is to be 10 percent by weight for 2035, and 15 percent by weight for 2040. To achieve this, the Commission proposes measures for reuse, packaging minimisation and packaging bans.
Article 10 defines criteria for the reusability of packaging. These apply to primary, secondary and tertiary packaging. Art 26 then sets out specific requirements for the reuse of certain packaging by means of targets
Economic operators placing reusable packaging on the market shall also ensure that systems exist which comply with the minimum requirements for reuse systems listed. For the calculation of those targets, the Commission reserves the right until 31 December 2028 to adopt an implementing act specifying the method of calculation of the targets referred to in Article 26. Also, packaging used to transport products between two economic locations of the economic operator shall be reusable.
In addition to reuse, the Commission proposes measures to reduce the weight and material of packaging In order to reduce the weight and volume of packaging to a minimum, the so-called basic requirements for the design of packaging have been supplemented in Art 9 with the inclusion of so-called performance criteria in the annex to the text of the regulation. In addition, it should no longer be possible in the future to design and market packaging with consumer acceptance in mind. When the regulation comes into force, theemptyspaceinpackagingmustalsobereducedtotheminimumnecessary to ensure the functionality of the packaging and may then no longer exceed 40%. Furthermore, as of the entry into force of the regulation, packaging with features aimed solely at increasing the perceived volume of the product, including double walls, double bottoms and "unnecessary" layers of material, may no longer be marketed.
As a third element of packaging prevention, the Commission provides for marketing bans on certain single-use packaging in Annex V of the proposal. This extends the list of bans from the so-called Single-Use Plastics Directive (2019/904/EU) adopted in 2019.
In principle, BDI welcomes the fact that the waste hierarchy is to be strengthened and the volume of waste to be minimised by introducing measures to prevent packaging waste. Nevertheless, the requirements in accordance with the waste hierarchy must offer a demonstrable ecological advantage over the entire life cycle and must be technically feasible and economically proportionate, and thus must not counteract the goal of closing material cycles.
Requirements for practical provisions :
Theproposedmeasurestoreducethevolumeofwastemusteachoffer a clear benefit that can be demonstrated in terms of life cycle assessment, cf. Art. 4 (2) Waste Directive. In addition, the advantages of certain packaging with regard to ensuring a high level of hygiene and the reduction of food waste must be included in the consideration. In the case of product bans, the prohibition of placing on the market due tominimizationrequirementsortheintroductionofreusesystemsand targets, it is also sometimes a case of serious interference with entrepreneurialfreedom andtherespectivefundamental rights, whichmust be justified. E.g., this concerns points 4 and 5 in Annex V of the proposed regulation. The proof of the ecological advantageousness is almost completely missingin theimpact assessmentoftheCommission proposal.
The envisaged empty space requirement of 40 percent (Art. 21) is intended to contribute to the overall objective of the proposed regulation to reduce the volume of waste. Material manufacturers, distributors and retailers are already working intensively to reduce the use of packaging material and optimize its functionality. The goal here must remain a holistic sustainable packaging design. However, the empty space requirement from Art. 21 can lead to problems in practice. Products with specific properties (e.g. fragility, flammability, protection from and against liquids, etc.) require special protection, e.g. through padding. This can often only be ensured by appropriate shipping or transport packaging with sufficient volume for protective material. The calculation of the empty space requirement should therefore be made in such a way that these requirements are taken into account. In addition, the calculation of the empty space could not be carried out per package, but could be determined as an average value of all packages shipped per company.
The possibility envisaged in the proposed regulation for the Commission to extend the list of product bans in the future by delegated act is to be rejected. Such far-reaching interventions in the market and the entrepreneurial freedom protected by fundamental rights require the regular participation of the co-legislators Parliament and Council (Art. 22(4)).
There are unresolved conflicts of objectives between the minimisation (Art. 9) and reuse (Art. 10 and 26) requirements. For example, the introduction of reusable packaging will require a considerable degree of standardization. This in turn means that individually adapted packaging optimised in terms of weight and volume cannot be used for every product and that empty spaces, for example, must therefore be accepted (Art. 9 Para. 1 and 3).
The provided targets for reuse are inconsistent. They refer partly to the filling material (Art. 26 par. 1-6) and partly to the type of packaging (Art. 26 par. 7-13). In addition, the impact assessment lacks proof of the ecological advantageousness compared to high-quality recycling cycles.
The requirements that packaging must be 100 percent reusable (Art. 26(12)) or generally reusable (Art. 26(13)) within an EU member state when transporting products between two company locations in the EU as of the regulation's entry into force is neither feasible nor ecologically desirable or legally permissible. The required cleaning and storage logistics, the additional transports and the linking of obligations to national borders is not reasonable and potentially leads to the disruption of value chains and evasive movements to other and potentially less ecological transport systems.
2.5 Establish extended producer responsibility, collection, deposit and return systems in a practical manner (Art. 41, 43 & 44)
The proposed regulation contains EU-wide requirements for extended producer responsibility (Art. 41). These include the separate collection of packaging as a prerequisite for meeting recycling and recyclate use targets. Art. 43 is aimed at the separate collection of packaging that is not subject to a deposit system.
Art 44 provides that by January 1, 2029, all member states must ensure that deposit and return systems are in place for single-use plastic beverage bottles (<3l) and single-use metal beverage containers (<3l). The obligation does not apply to wine, aromatised wine products, spirits, milk and other dairy products. Member states are also permitted to establish additional requirements and measures. A member state is exempt from the regulation only if a collection rate for regulated beverage packaging of 90 percent by weight of the packaging placed on the market in the territory in the calendar years 2026 and 2027 is achieved or a member state submits an application by the end of 2026 at the latest that also includes an implementation plan on an alternative strategy.
The high return rates achievable through deposit systems ensure segregated collections for certain types of packaging and thus a high level of quality in recycling. They provide a decisive basis for meeting the recyclate input obligations for plastic packaging, particularly in the area of contact-sensitive applications
Requirements for practical provisions:
- In order to ensure the separate collection of packaging close to households, manufacturers should be required to participate in an organisation to assume producer responsibility (Article 41). This is because the individual collection of such packaging from private households outside deposit systems by individual manufacturers does not generally correspond to the reality of consumers' lives. Thus, there are no incentives for consumers to bring packaging over longer distances to central collection points. As aresult, thereis arisk that packaging will be diverted from high-quality recycling via residual waste collection.
- As envisaged in the Commission proposal, deposit systems for packaging should only be permitted and promoted where they actually make ecological sense and offer a clear added value in terms of resource efficiency and environmental protection compared to the respective established collection systems, which must be proven by life cycle assessment studies. Overall, high-quality separate collection remains crucial for functioning material cycles. Deposit systems are therefore not necessary if the return of specific packaging can be proven to be sufficient even without a deposit
- There is a potential conflict of objectives between the provisions on deposit systems in Art. 44 andthe provisions on reusein Art. 26.Both articles should therefore be better interlinked, as otherwise disproportionate costs for the economy and the consumer may arise. This circumstance must be considered in the regulation.
2.6 Adapt specifications for industrial/commercial and secondary packaging and transport packaging in value chains to reality (including Art. 6, 7, 9, 10, 11, 21, 22, 26 and 38)
The proposed regulation does not differentiate between packaging for consumers (B2C) and industrial/commercial users (B2B). This circumstance leads to major problems at numerous points in the proposal with regard to stable international supply chains, practicable specifications for packaging in the context of industrial business relationships and the shipment of goods, and standards specified internationally by corresponding sets of regulations (including in the area of hazardous goods packaging). In addition, for many industrial packaging in the B2B sector, numerous established systems exist in Germany for manufacturers as producer responsibility organisations for sustainable industry-specific packaging management in supply chains.
Requirements for practical provisions:
There are legal ambiguities with regard to the definition of transport packaging. These are defined in the proposed regulation (Art. 3 (4)). However, the text of the regulation also refers to buckets and drums as transport packaging. In this context,packaging that is in direct contact with the contents is not considered to be transport packaging. In addition, transport packaging should not be limited to packaging for the transport of "several sales units", as previously envisaged in the proposed regulation, but the definition in Art. 3 No. 4 should be extended to include packaging for "individual or several sales units".
Industrial/commercial packaging for dangerous goods within the scope of Directive 2008/68/EC should not be regulated by the Regulation, but should be excluded from its scope. International regulation of industrial/commercial packaging for dangerous goods is carried out at UN level in the Committee of Experts on the Transport of Dangerous Goods. Especially in international trade, such common rules are necessary to ensure that the packaging is used internationally. In addition, the use of recyclates or the reuse of packaging for dangerous
goods, for example, is not possible for the protection of human health and the environment.
For the introduction of targets for the reuse of industrial/commercial as well as secondary and transport packaging, the proof of ecological advantageousness in the impact assessment is almost completely lacking. Target requirements should only be introduced if they are actually ecologically beneficial and practicable. For example, many transport packagings are individually manufactured for specific goods. Reuse options are technically not possible or sensible for certain packaging (e.g stretch films, strapping, racks, etc.). In addition, well-functioning, closed recycling cycles exist for transport packaging, such as transport films.
The requirements within the scope of Design for Recycling (Art. 6) are not applicable to sales packaging with regard to the criterion of large-scale recycling for industrial/commercial packaging (Art. 6 Par. 6). Industrial/commercial packaging occurs on a significantly smaller scale and in direct connection with value-added activities and does not require the envisaged infrastructural coverage within the European Union as provided for sales packaging.
Consequently, the packaging of industrial/commercial users (B2B) should generally be excluded from the scope of the regulation or corresponding exemptions would have to be included in numerous regulations in order to be able to take account of the special features that exist for technical reasons alone. Comparability of this packaging with packaging for consumers (B2C) is not given for numerous reasons.
About the BDI
The BDI conveys the interests of German industry to those with political responsibility. In this way, it supports companies in global competition. It has an extensive network in Germany and Europe, in all important markets and in international organizations. The BDI provides political support for international market development.Andit provides informationandeconomicpolicy advice on all industry-related issues. The BDI is the umbrella organization of German industry and industry-related service providers. It speaks for 40 industry associations and more than 100,000 companies with around eight million employees. Membership is voluntary. 15 state representatives represent the interests of industry at regional level.
Imprint
Federation of German Industries (BDI)
Breite Straße 29, 10178 Berlin
www.bdi.eu
T: +49 30 2028-0
Lobby registration number: R000534
Contact Dr. Claas Oehlmann
Managing Director BDI Initiative Circular Economy
Phone: +493020281606
c.oehlmann@ice.bdi.eu
BDI document number: D1758