Amendment of the Packaging Act: Bundesrat resolution

Category: compliance Industry: consumer goods Author: Year:
Philipp Reusch


Directive (EU) 2019/904 (PDF) on the reduction of the impact of certain plastic products on the environment took effect on 2 July 2019, and its provisions generally have to be implemented by 3 July 2021. In Germany, this Directive was implemented primarily through the Packaging Act, with some provisions implemented in the Recycling Act and the Water Management Act as well. Germany's Federal Council, the Bundesrat, has now responded to the bill (PDF only in German) of 22 January 2021 (which we reported on), adopting a resolution (PDF only in German) on 5 March 2021. The key provisions of this resolution will be presented below.

Service packaging: more lenient requirements for retailers, exemptions for microenterprises

One of the changes in the Packaging Act called for in the bill will mean that a considerable number of business owners will be subject to a registration requirement in the future in accordance with § 9 of the Packaging Act (only in German). Retailers in particularly will be most affected by this requirement, which is to apply to all "manufacturers of service packaging filled with goods." Service packaging is packaging which the distributor fills with goods on the premises, such as bags of bread at the bakery. However, such service packaging already has to be registered by the upstream distributor (i.e. the manufacturer of the service packaging). The Bundesrat takes the view that this requirement for the same packaging to be registered twice, and the associated risk of severe fines for retailers which fail to comply, are unacceptable. Instead, it should be enough for them to declare that only service packages which fully participate in the system are placed in circulation (No. 2). In addition, "microenterprises," as defined in Article 2(3) of the Annex to the Commission Recommendation (2003/61/EC), are to be fully exempt from the duty to register and take part in the system.

ZSVR: comprehensive preliminary review even for third-party complaints

The resolution also calls for making investigations into violations of the registration requirements more effective. At the moment, the office responsible for Germany's packaging register, Zentrale Stelle Verpackungsregister (ZSVR), only conducts investigations and collects evidence of violations on its own initiative, before transferring the information it collects to the competent State agency. There is no provision for such a preliminary review in the case of complaints filed by third parties, so that the state agencies are required to conduct the investigations themselves. The changes described in Nos. 14 and 15 will now extend this preliminary review procedure to include third-party complaints. These changes will be implemented accordingly in the revised § 36 of the Packaging Act, which relates to administrative offenses. As a result, the authorities will be able to draw to a considerable extent on ZSVR's professional expertise, and this procedure would also avoid situations in which parallel investigations are conducted by different authorities, as well as cases in which suspicions are reported without supporting evidence.

Requirements extended to foreign manufacturers

Foreign manufacturers are to be required to appoint an authorized representative (No. 21). Such a provision would incorporate a requirement within the Packaging Act which already exists in the Electrical and Electronic Equipment Act (we reported on the amendment of the Electrical and Electronic Equipment Act here) in connection with the registration requirement provided for in that Act (§ 8(1) of the Electrical and Electronic Equipment Act). Such a requirement is also called for in Article 40(1) of the Proposal for a Batteries Regulation (which we reported on), with regard to registration in accordance with Article 46 of the Proposal.  
This requirement is designed to place domestic and foreign manufacturers on an equal footing, since "it is nearly impossible, in practice, for the lower environmental agencies which are competent in most States to prosecute administrative offenses committed by foreign manufacturers." Originally, the bill stated only that such a representative "could" be appointed. In addition, the local jurisdictions of the administrative authorities are to be defined at a later date (No. 22). Otherwise, the authorities in Osnabrück (the location of ZSVR's head office) and Dessau-Roßlau (headquarters of the German Environment Agency, UBA) would be overburdened.

[March 2021]