The infringement procedure against France and the new Packaging Regulation.
The European Commission initiated an infringement procedure against France on 15 February 2023 and requested the country to change its national labelling rules for waste separation. According to the Commission, the French waste law is not in line with the principles of the European Single Market because it provides for the mandatory use of a sorting logo, the TRIMAN logo and the Info-tri logo, which is not mandatory in other Member States. With the planned Packaging Regulation, the EU Commission wants to clearly restrain national go-it-alones.
EU packaging law
Despite their subordinate relevance in the value chain, there has been no issue in the last two years that has occupied internationally operating companies more than the labelling regulations for packaging applicable in France, in particular the TRIMAN logo and the information on sorting procedures (Info-tri), which have been in force for household products including electrical equipment since 1 January 2021 and are part of the Extended Producer Responsibility (EPR) system. The current EU Packaging Directive, which was transposed into German law by the German Packaging Act (Verpackungsgesetz), does not contain any corresponding regulations on waste separation labelling on the product. Nevertheless, in addition to France, other Member States such as Belgium, Italy and Spain have also enacted their own national labelling regulations, which increasingly lead to a fragmentation of the labelling landscape and make a harmonised labelling system a distant prospect.
EU infringement procedure
On 23 February 2023, the EU Commission initiated an infringement procedure against France, which might be decided in the last instance by the ECJ and as a result of which financial sanctions might be imposed. In this procedure, the Commission is currently arguing that the French TRIMAN regulation constitutes an obstacle to the European Single Market and the principle of the free movement of goods, since the requirement of additional labelling causes increased material consumption and thus more waste. In addition, the Commission argues that France has violated its own notification obligation, as the law has cross-border effects of which the Commission would have had to be informed already during the drafting stage. Despite this procedure, however, it should be noted that the obligation to affix the TRIMAN logo remains in force as long as the French national legislator does not repeal the regulation. Therefore, the French market surveillance authorities will continue to monitor compliance with the TRIMAN regulations and impose sanctions, if necessary.
Outlook: The new Packaging Regulation
The legislative procedure is currently underway in the EU for the enactment of a new Packaging Regulation, which is intended to counteract the increasing fragmentation through national regulations by introducing uniform labelling regulations and to replace the almost 30-year-old Packaging Directive. The labelling obligation is primarily about the material composition of packaging and information on its reusability. In addition, manufacturers and importers will have to put their name and contact details as well as a serial or batch number on the packaging. With regard to the EPR, the Commission draft currently provides that Member States may adopt additional labelling requirements if the packaging participates in an Extended Producer Responsibility system (e.g. registration, data reporting) or in a deposit and return system, which suggests that national labelling requirements such as the TRIMAN will still be possible after the adoption of the new Regulation. At the same time, however, the Commission makes it clear in Article 4 that Member States may not prohibit or impede the placing on the market of packaging that complies with the requirements of the new Regulation but possibly not with the national requirements of a Member State.back