An analysis by Flick Gocke Schaumburg
Rainald Vobbe, Partner at our German firm, Flick Gocke Schaumburg reports on the introduction of a producer levy on single-use plastics in Germany, introduced recently by the Bundesrat (upper house of parliament).
The move follows a complete ban of certain disposable plastic products, such as drinking straws and cotton buds, in 2021 and is part of an EU directive to reduce the impact of plastic products on the environment. Anyone who sells disposable packaging in Germany, such as beverage cups, plastic bags, food packaging, but also cigarettes or fireworks, is to pay into a state fund, administered by the Federal Environment Agency, from 1 January 2024.
Read the full analysis of the new regulations from Rainald Vobbe below…
On March 31, 2023, the Bundesrat (upper house of parliament) in Germany decided to introduce a producer levy on single-use plastics.
In particular, improperly disposed of single-use products pollute our environment – from local parks, to beaches across Europe, to remote ecosystems like the Arctic. Under this recent decision, manufacturers in Germany will now contribute to the disposal costs of municipalities through a levy on single-use plastics, which will at the same time create incentives to curb the use of such materials.
Participation of manufacturers in disposal costs
After the distribution of certain disposable plastic products, such as drinking straws or cotton buds, was completely banned in 2021, the next measure against environmental pollution by plastic products now follows. The background is an EU directive to reduce the impact of plastic products on the environment. According to this directive, each member state must bring about a measurable quantitative reduction in the consumption of certain single-use plastic articles on its territory by 2026 compared to 2022.
In particular, the legislative resolution provides for a special levy for manufacturers on products made of single-use plastic. In accordance with the objective of the EU Directive, this is intended to limit the careless throwing away of waste into the environment and to better manage the resource “plastic”.
Anyone who sells disposable packaging in Germany, such as beverage cups, plastic bags, food packaging, but also cigarettes or fireworks, is to pay into a state fund from 1 January 2024. Revenues of up to 450 million euros are expected to benefit cities and municipalities and, above all, relieve municipal waste disposal companies.
In the long term, this should create an incentive to reduce the production volume of disposable plastic and the associated CO2 emissions from the outset.
Both the Association of Municipal Enterprises (VKU) and the German Association of Cities do not think the draft law goes far enough. They are calling for the levy to be extended to other disposable products, especially those made of cardboard and aluminium.
Concerns, on the other hand, come mainly from business associations. They fear unnecessary burdens for the paying manufacturers and see politics as responsible for making the actual implementation fair and cost-efficient.
Envisaged obligations for manufacturers
Manufacturers of single-use plastic products will be required to register with the Federal Environment Agency, which will be responsible for administering the fund, before commencing their activities. Manufacturers based in Germany will be obliged to pay the levy if they make the products available on the German market for the first time. However, manufacturers not based in Germany are also included insofar as they distribute single-use plastic products to private households or other users in Germany by means of distance communication.
The amount of the levy is then based on the quantity provided or sold by the producers, which is to be reported annually in kilograms. There is also to be an exact breakdown according to the respective type and mass. To this end, registered experts must be called in for verification. From now on, producers who are not or not properly registered will no longer be allowed to make their products available or sell them on the market.
The exact levy rates have yet to be determined by ordinance.
Liability of third parties
The new legal situation will not only be relevant for manufacturers. Operators of electronic marketplaces may no longer enable the offering of single-use plastic products if the manufacturer does not properly comply with his registration obligation. The same applies to fulfilment service providers, who in that case may not provide services, such as packaging, addressing or shipping, in relation to single-use plastic products.
In order to be able to fulfil their responsibilities, these actors have the possibility to inform themselves about the registration of the respective manufacturers in a freely accessible online database.
Manufacturers who carry out their activities without being registered and third parties who offer for sale single-use plastic products of non-registered manufacturers commit an administrative offence according to Sec. 26 para 1 of the legislative decision and may be subject to a fine. Depending on the type of violation, the fine can be up to 100,000 euros.
Consequently, it is very important for companies to know the applicable regulations and to comply with any obligations to provide evidence.
This is especially true since similar regulations can also be found in other (EU) countries. However, these are – especially in the details – very differently structured.
A comprehensive introduction of corresponding regulations throughout the EU seems desirable in order to prevent distortions of competition. It remains to be seen whether the hoped-for success in the area of sustainability will be achieved in the long term.
For more information, contact Rainald Vobbe.
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