Essential provisions in the Packaging Act
- Which manufacturers are affected by the Packaging Act?
- Who is a private end consumer, and who is not?
- Which dual systems are there and when must a contract with a dual system be concluded?
- What are the different types of packaging defined by the Packaging Act?
- When do you need to register, and what information must you include?
- What obligations must be met after registration?
Which manufacturers are affected by the Packaging Act?
Manufacturers are entities bringing commercial (paid for or free of charge) sales units of goods and packaging (e.g., packaged products) onto the domestic market. “Manufacturers” means not only domestic producers, but also all importers, insofar as they assume the transportation risk associated with importing goods into Germany (e.g., INCOTERM DDP). Contract manufacturing companies which label packaging for the customers exclusively with the customer’s name or brand, or both, are not manufacturers. In this case, the manufacturers only own the brands or the company names, and therefore must meet their obligations under the Packaging Act. If the manufacturing company’s name is also printed on the packaging, the company producing it is the manufacturer.
For service packaging (e.g., carrier bags, cups, salad bowls, etc.) the manufacturer may demand that its suppliers include this service packaging in a dual system. In this case, the manufacturer has no obligations under the Packaging Act regarding the service packaging.
Who is a private end consumer, and who is not?
Private end consumers are private households and other end consumers equivalent to households. These end consumers are specifically enumerated in Section 11(11)(2) of the Packaging Act. They include, in particular, restaurants, hotels, service stations, canteens, barracks, hospitals, educational institutions, charitable organisations, freelance establishments, …., farms and workshops, where the waste containers are no larger than 1,100 litres and can be emptied within the usual household collection schedule.
Which dual systems are there and when must a contract with a dual system be concluded?
Comprehensive dual systems have been identified by all 16 German federal states and are listed on the Central Packaging Register’s website. A contract with a dual system must be concluded before the sales packaging is first brought into circulation. The contract must be concluded independently of the total annual quantity of products sold on the domestic market. The quantity thresholds of Section 11 of the Packaging Act, over which the declaration of completeness must be audited, are irrelevant to the mandatory inclusion of sales packaging in a dual system.
What are the different types of packaging defined by the Packaging Act?
Transport packaging is packing to facilitate handling and transport so that direct contact and transport damage is avoided and is typically not handed on to the end consumer. Transport packaging that is intended to be re-used (e.g., Euro pallets, containers) does not count as transport packaging.
Sales packaging is typically provided to the end consumer as a sales unit consisting of goods and packaging.
Secondary packaging is packaging containing a certain number of sales units and is typically provided to the end consumer with the sales units as well as the packaging for stocking retail shelves.
Dispatch packaging enables goods to be shipped to the end consumer.
Service packaging enables and supports the transfer of unpackaged products to the end consumer (e.g., carrier bags, cups, salad bowls).
When do you need to register, and what information must you include?
Every manufacturer already operating on the domestic market must register with the Central Packaging Register by no later than 31 December 2018. Manufacturers who wish to start distributing products in Germany must register with the Central Register before commencing distribution activities. Registration must be undertaken by the manufacturer. Delegating registration to a third party is not permitted.
The registration must include, inter alia, company and contact data, VAT ID and manufacturer’s national identification number (e.g., Commercial Register number, etc.). All companies of a group distributing products as independent manufacturers (e.g., with their own VAT ID) must register individually. In addition, all brands for which the registering company is the manufacturer must also be listed. Information about brands must always be current and must therefore be amended without delay if any changes are made.
What obligations must be met after registration?
Data reports must be submitted to the Central Packaging Register when a contract with a dual system is concluded, and immediately after a quantity is reported to a dual system. The reports are to be submitted via an online reporting portal and must be submitted by the manufacturer personally. The following information is to be entered:
- Registration number
- Type of material and dimensions of the registered packaging
- The name of the dual system in which the packaging was included
- The period for which the packaging was included in the system
If more than 80 tonnes of glass or 50 tonnes of paper, card or cardboard or more than 30 tonnes of light packaging (= total plastics, composites, tinplate and aluminium) were listed in the data reports in one calendar year, an audited declaration of completeness must be submitted by 15 May of the following year.
Transition from the Packaging Ordinance to the Packaging Act
Action required by 31 December 2018
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Registration with the central register
Anyone not registered by 31 December 2018 will be subject to a sales ban as of 1 January 2019. In addition, they may be fined up to EUR 100,000.
Every manufacturer already operating on the domestic market must register with the Central Packaging Register by no later than 31 December 2018. Manufacturers who wish to start distributing products in Germany must register with the Central Register before commencing distribution activities. Registration must be undertaken by the manufacturer. Delegating registration to a third party is not permitted.
The registration must include, inter alia, company and contact data, VAT ID and manufacturer’s national identification number (e.g., Commercial Register number, etc.). All companies of a group distributing products as independent manufacturers (e.g., with their own VAT ID) must register individually. In addition, all brands for which the registering company is the manufacturer must also be listed. Information about brands must always be current and must therefore be amended without delay if any changes are made.
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Review of the contract with the dual system for 2019
The Packaging Act has resulted in amendments to the Packaging Ordinance; these must be implemented by 31 December 2018.
The Packaging Act increases (e.g., secondary packaging) or reduces (e.g., by expanding the mandatory deposit) the quantity of sales packaging included in a dual system. The clarification that genuine brand packaging for trademark owners must also be included in a dual system, and that as sales packaging, dispatch packaging must be included in a dual system, may lead to a change in the quantity of packaging included in a dual system. The Central Packaging Register will also publish a catalogue of packaging subject to mandatory inclusion, with information on how the Central Packaging Register will decide on applications to classify packaging as subject to inclusion in a mandatory system by administrative act (Section 26(1) (23) of the Packaging Act).
Against this backdrop, the dual system commissioned for the 2019 licence must potentially be informed that the included packaging quantities will increase or decrease depending on the type. Should another dual system be selected for 2019, care must be taken to ensure that the Central Packaging Register is informed of this change by 31 December 2018, once registration has already been completed.
Action required as of 1 January 2019
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Data reports to the central register
All manufacturers must personally report packaging quantities to the Central Packaging Register; otherwise they face the risk of fines of up to EUR 10,000.
As of 1 January 2019, data reports (=quantity reports) must be submitted to the Central Packaging Register at the same time as quantity reports. An online reporting portal is available for this. In addition, the registered brands must always be up-to-date. Please note that manufacturers must submit the data reports themselves. However, it remains possible that an appointed third party may submit the quantity reports to a dual system for the manufacturer’s VAT ID. In such cases, the appointed third party’s quantity report to the dual system must match the manufacturer’s quantity report to the Central Packaging Register for the same reporting period and type of material, and the dual system must inform the Central Packaging Register of the manufacture as an approved dual system.
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Submission of the declaration of completeness for 2018 and the following years
Declarations of completeness must be submitted to the Central Packaging Register by 15 May of the relevant year.
If more than 80 tonnes of glass or 50 tonnes of paper, card or cardboard or more than 30 tonnes of light packaging (= total plastics, composites, tinplate and aluminium) were brought into circulation in one calendar year, an audited declaration of completeness must be submitted by 15 May of the following year. The quantity thresholds were adopted without changes from the Packaging Ordinance.
The content of the declaration of completeness for 2018 is subject to the provisions of the Packaging Ordinance; however, it must be submitted electronically to the Central Packaging Register. This latter also monitors compliance with all requirements for the declaration of completeness, in particular the submission of the audit report by 15 May 2019.
A declaration of completeness may be audited by registered auditors only. The list of registered auditors is published by the Central Packaging Register on its website.
How to contact us
UWE HELMERKING
(Managing Director)
helmerking@gpsm.net
+49 89 55 26 41 52
+49 171 933 81 73
+49 89 55 26 41 53
How do you ensure that you have applied the Packaging Act correctly as a retailer?
You sell many different brands and source these products both in Germany and abroad. Which topics might be important for you? For example, could it be that you have to pay for packaging recycling, even though you are only a retailer? What if you sell own-brand products? How are your own or other shipping cartons classified?
If the products sold by you are imported from abroad, the conditions of sale will stipulate how you obtain these products. If you purchase stock ex works, you are essentially not responsible for including the packaging in a dual system. However, this applies only if your supplier meets the obligations of the Packaging Act. You will be subject to a sales ban for products sold to you by your supplier where the packaging is not included in a dual system. You may avoid this only by ensuring that the packaging is included in a dual system yourself.
If you sell products labelled with your own brand only, you are responsible for the recycling of these brands. You count as the manufacturer, although you have not yourself manufactured and packaged these products. This means that you must include the packaging in a dual system before you begin to sell the products. If the manufacturer of your own-brand products is also named on the packaging, you are no longer required to include the packaging in a dual system. This applies only if the manufacturer has also complied with their own obligations.
If your products are packed by you in shipping boxes and shipped to private households or waste collection points equivalent to private households, these shipping boxes must be included in a dual system. This is the rule in online shops. Shipping boxes cannot be included in a dual system by your shipping box supplier. This must of necessity be done by whoever fills the shipping cartons with goods. If you resell the goods delivered in shipping boxes without first opening them, inclusion in a dual system may be waived only if your supplier has already included the shipping boxes in a dual system. You should request confirmation of this from your supplier.
Which packaging must a manufacturer supplying different customer groups include in a dual system?
Your company supplies manufacturing plants as well as workshops and private households. What are the consequences of the obligation to include the packaging in a dual system? What does “typically” mean in this context?
This term refers to the generally accepted standards regarding where the end consumption of sales units consisting of goods and sales packaging typically takes place; a place that could be either the private domain (including collection points equivalent to private households) or a non-private domain, thus (large) commercial or industrial companies. The term is abstract and requires a legal interpretation on the one hand, along with a numerical basis on the other, according to which the “typical” location of end consumption can be determined. To this end, administrative court decisions are to be expected, which will interpret this vague legal term on a case-by-case basis, making it easier to apply in practice. The Central Packaging Register has published its understanding of the packaging classification in the catalogue of packaging subject to mandatory inclusion. However, if no request has been submitted pursuant to Section 26(1) (23) of the Packaging Act and decided by administrative act, this understanding is not directly legally binding either for implementation by German federal states or for manufacturers. The catalogue will otherwise be continuously updated.
If you, as the manufacturer, can designate manufacturing facilities as the place of end consumption using delivery notes or similar information, this constitutes clear evidence that the packaging was not obtained in the private domain. Still other features of the packaging / products must come into consideration to enable an unequivocal assessment of whether the sales packaging is to be included in a dual system or whether this packaging is not to be included in a dual system under Section 15(1) (1) (2) of the Packaging Act.
These establishments are essentially classified as waste collection points equivalent to private households. Sales packaging delivered to them must therefore be included in a dual system. Admittedly, handicraft businesses cannot also be private collection points under Section 15(1) (1) (2) of the Packaging Act, if either the waste containers for each type of material are larger than 1,100 litres or the collection schedule is different from that of general households. A typical example is construction sites for new buildings or general renovations, which have a construction site waste disposal system using larger waste containers. If the delivery of products, for example, to such construction sites can be verified, the non-inclusion of this sales packaging in a dual system may be considered in this respect.
Private end consumers are private households and other end consumers equivalent to households. These end consumers are specifically enumerated in Section 11(11)(2) of the Packaging Act. They include, in particular, restaurants, hotels, service stations, canteens, barracks, hospitals, educational institutions, charitable organisations, freelance establishments, …., farms and workshops, where the waste containers are no larger than 1,100 litres and can be emptied within the usual household collection schedule.
Sales packaging typically delivered to private households must be included in a dual system.
* This is practice-oriented information and does not claim to be complete