Germany proposes changes to Packaging Ordinance but abandons Recycling law

Last month, a draft proposal to revise the German Packaging Ordinance was introduced by the German Federal Environment Ministry.

This replaces the much disputed draft “Wertstoffgesetz” (Recycling Law). We have reviewed the proposal which includes increases in collection and recycling targets, administrative reforms and a move towards Design for Environment. Here is an outline of the main points you need to know:

Packaging Regulations in Germany

Germany was one of the first countries to introduce packaging regulations and producer responsibility, as far back as 1991. The country generates a large amount of packaging waste, 17.1 Million tons in 2013. It does however also show a consistently high collection and recycling rate: 97.6% of all packaging is recovered, 71.8% recycled – arguments regarding the merits of input over output calculations aside.

Why is this? Well it is due to Germany’s mature recycling infrastructure, regular household collections of recyclables (shared between compliance schemes and municipalities) and high consumer awareness of the importance of sorting packaging waste for recycling.

Doing well, but could do better

At first glance, german packaging recycling looks successful, so why change it?

For years, the recycling industry and environmental groups have highlighted a number of shortfalls in Germany’s collection and recycling system – starting with the issue of plastics and metals.

An estimated 450,000 tonnes of recyclable material is lost annually, because non-packaging items made from plastic and metal (tools, toys, cutlery etc) are still discarded in the mixed waste bin – and go from there to incineration, due to the landfill ban in Germany for residual mixed waste.

And although there is an argument for the energy recovered from waste incineration, it is also a source of GHG emissions. Management of solid waste incineration is estimated to contribute 40 Mt CO2-e (estimated in 2007), still relatively minor when compared to landfilling (a whopping 700 Mt CO2-e) but completely unnecessary for plastics and metals, which can and should be recycled for resource efficiency.

It therefore came as a surprise that the new packaging ordinance draft no longer mentions extending producer responsibility to metal and plastics, a measure which would have supported the separate collection and recycling of these materials. This, amongst a number of other points, has been harshly criticised in a position paper by the german environmental organisation DUH (Deutsche Umwelthilfe), published in response to the draft legislation.

Proposed Changes

What the draft ordinance does introduce is higher collection and recycling targets for all packaging materials, as well as comprehensive reform of how the system will be administered in future.

One aspect of the original Recycling Law proposal that remains is the introduction of a central authority, designed to look after the registration of producers, coordinate collection services between compliance schemes and communities, and administer the annual data audit requirement (Declaration of Completeness).

Impact on producers

If your company is currently a member of a german packaging compliance scheme, changes should be minimal initially. It is highly likely that compliance schemes will register their existing members with the central authority or advise on any further actions needed. Data reporting directly to the schemes is also set to continue as before.

Producers that exceed specific material thresholds (more than 80t glass or 50t paper/cardboard or 30t of all other materials) are required to submit an annual declaration of completeness, signed off electronically by an auditor. Currently this is submitted to a local chamber of commerce, but this role will also be taken on by the central authority. However, the submission deadline will be extended from 1 May to 1 June.

One change that will develop over the years is how producers’ packaging fees are set and charged by compliance schemes.

Whilst fees are currently paid at a price per weight of packaging material, the draft law obligates compliance schemes to introduce incentives for producers to invest in better recyclability of their packaging.

Already successfully introduced in France in 2012, modulated (differentiated) fees based on recyclability are a cornerstone of the Circular Economy Package, and aimed to increase waste prevention, which is always preferable even to recycling.

This means that german compliance schemes could in future charge two very different sets of fees: the better the recyclability of your products, the lower your fees – and vice versa.

Compliance schemes are asked to submit concrete measures for differentiated fees to the central authority annually, from which a minimum standard for recyclability will be developed and published going forward.

Register of compliant producers will be public

If your company is not currently complying in Germany - because it is uncertain of any obligation, or only planning to sell to Germany in future – some of the changes proposed could have an even bigger impact.

The central authority will publish a list of registered producers, and similar to the WEEE regulations in Germany this could make enforcement much easier. This fact is borne out by an increase in sanctions for non-compliance – producers selling direct to private household end-users in Germany without a valid registration and german compliance scheme membership could face a fine of EUR 200,000.

Since non-compliance with producer responsibility legislation in Germany is further enforced through civil law, anti-competition proceedings will also be aided by the public register. Competitors can ask non-registered producers to stop selling with immediate effect, demand compensation and disclosure of sales. This is a frequent enforcement measure under WEEE regulations in the country, and should not be underestimated.

Next steps

The draft is currently under review amidst criticism and disappoinment but many stakeholders are resigned to accept this compromise and move the legislation forward.

After a year of stops and starts with the ill-fated Recycling Law, there is little appetite for another round of changes and arguments. This Packaging Ordinance draft is likely to prevail in its current format, with perhaps only a few amendments.

Publication of the final version could be as early as 2017, the law expected to be in force some time in 2019.

Since changes to the WEEE and RoHS (Restriction of Hazardous Substances) scope are also coming into effect between 2018 and 2019, companies are set for a busy period of adaptation and compliance.

How can ecosurety help?

We can offer consultancy to help producers understand their requirements in a number of member states. Support solutions include impact assessments, compliance strategies, regulatory monitoring, data management and distributor compliance support.

Simply get in touch with the ecosurety team if you are offering goods for sale in Germany.

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