German Packaging Act 2019: higher hurdles for commercialization, lower environmental impact of waste?

Implementing the EU Packaging Directive 94/62/EC, the German Packaging Act aims to facilitate reduction and recycling of packaging waste by improving the dual system for waste disposal and recycling.

To whom is the VerpackG directed?

The addressees of the German Packaging Act are producers and distributors who put packaging into commercial circulation in Germany for the first time. Online retailers are concerned as well. 

Which packages fall into the scope of the VerpackG? 

The types of packaging that have to mandatorily participate in the dual system are specified as 

- sales packaging (“Verkaufsverpackungen”) and

- secondary packaging (“Umverpackungen”).

To be concerned by the VerpackG, these types of packaging have to be filled with goods, and to arise typically as waste at the private final consumer or at comparable sources of waste generation such as hotels, restaurants, educational institutions or cinemas (cf. Sec. 3 para. 1, 8 and 11 of the VerpackG).

What are the new duties?

Registration 

All producers and distributors described above are supposed to play a bigger role in the dual system. Therefore, they are obligated to register with the “Zentrale Stelle”. Mandatory registration directly to this Central Packaging Registry can be done for free under https://lucid.verpackungsregister.org/ and requires inter alia the provision of a set of information comprising:

• the name, address and contact information of the manufacturer;
• identification of a natural person with powers of representation;
• the national ID number of the manufacturer, including the European or national tax number of the manufacturer;
• a list of the brand names under which the manufacturer is putting into circulation his packaging subject to mandatory system participation;
• a declaration that the manufacturer concerned is meeting his take-back duties by participating in a dual system;
• a declaration that the particulars given are true and accurate. 

Failure to properly register results in a prohibition of the concerned producers and distributors to place their packaging (and thus the products contained therein) on the German market (Sec. 9 para. 5 German Packaging Act). Non-compliance may lead to a fine of up to € 200.000 (sec. 34 para. 1 and 2 German Packaging Act). Furthermore, competitors might be able to claim a violation of unfair competition law und thus request manufacturers and retailers to cease and desist from any sales of products contained in the concerned packaging. 

Data reporting 

In addition to the obligation to register, producers and distributors have to commit to data reporting (sec. 10 German Packaging Act) and to provide a complete declaration of all sales and secondary packaging put into circulation for the first time in the previous calendar year, if a certain minimum amount of packaging distributed is reached, for example more than 80.000 kilograms of paper, cardboard and paperboard (Sec. 11 German Packaging Act).

These obligations, however, do not apply for the following items (sec. 12 German Packaging Act):reusable packaging,

• compulsory deposit one-way drinks packaging,
• packaging that do not end up at a private final consumer and
• sales packaging for pollutant-containing products.

Conclusion

All in all, the establishment of the “Zentrale Stelle” and the associated obligations such as registration makes offering packaging on the German market more complicated. Non-compliance with these requirements may even offer competitors the opportunity to attack based on a violation of unfair competition law. All producers and distributors must ensure they comply with the new requirements and, where applicable, registration without delay under https://lucid.verpackungsregister.org/ if they have not done so yet.