Extended information regarding VerpackG by ZSVR

Packaging Act – Zentrale Stelle expands information

The German Packaging Act (VerpackG) has now been in force for 16 months and there is still great uncertainty in the market as to who is subject to which obligations and what has to be done to fulfil the respective obligations.

For this reason, and in order to comply with its statutory information obligation under Sec. 26 Para. 2 No. 7 VerpackG, the Stiftung Zentrale Stelle Verpackungsregister (ZSVR) is publishing more information its website (available at: https://www.verpackungsregister.org/) about the obligations under the VerpackG.

Gradually, the information, which up to now has often only been available in German, will also be published in English in order to provide assistance to foreign entities subject to the obligations of the VerpackG, which will mainly be importers. In addition, the range of so-called explanatory clips is being constantly expanded. In addition to the classification decisions that have been publicly available for some time now, regarding the classification of specific goods packaging units as subject to the obligation to participate in the system or not, which are issued upon application, the ZSVR has recently started publishing so-called case reports.

The case reports each describe in a condensed form an actual case which the ZSVR is processing and in which it has identified one or more violations of the VerpackG. These infringements are then briefly elaborated and the possible legal consequences of the infringements (usually adiminstrative fines and sales prohibitions) are presented.

On the one hand, the concrete classification decisions and the rather abstract case reports offer an insight into the legal views of the ZSVR and the actual handling of the VerpackG by the ZSVR. On the other hand, companies of all industries and sizes remain responsible for determining their own obligations and ensuring the implementation of necessary measures to comply with the applicable obligations. The information published by the ZSVR can also be used for this purpose. However, the final binding decision is always incumbent on the courts, so that deviations from the opinion of the ZVSR are not excluded.

The central guideline for the implementation of the obligations of the VerpackG – registration, system participation, data reporting and, if necessary, submission of a declaration of completeness – must always be the consistent implementation of the legal obligations. Due to the comprehensive transparency of the fulfilment of obligations via the ZSVR’s packaging register LUCID, there are considerable risks if, for example, a registration is carried out but no system participation, since this deficit is directly evident for the ZSVR. The same applies at the next level if a system participation is carried out but no data is reported to the ZSVR or no declaration of completeness is deposited with the ZSVR.

Even though the number of registered companies participating in a system has increased (probably) due to the greater transparency of the market through the VerpackG compared to the previously applicable VerpackV and, according to the ZSVR, in March 2020 there were already approx. 179,000 manufacturers of packaging subject to system participation registered in the LUCID manufacturer register, it seems that a large number of affected manufacturers still not (properly) fulfils its obligations. This not only entails risks (in particular administrative fines, sales prohibitions, claims for damages and consequences under competition law) for these manufacturers themselves, but also for all subsequent distributors in the supply chain; enforcement measures can therefore also be taken at downstream stages of the supply chain.

All in all, it can be stated that the developments in the area of the implementation of the VerpackG continue to be very dynamic and that in the coming months and years one or the other judicial and legislative decision and amendmant can be expected. For final distributors, for example, a planned amendmnet to the VerpackG will introduce a new ban into the VerpackG. According to the currently available draft (available under: BT-Drs. 19/16503), the placing on the market of plastic carrier bags for on-site filling with goods with a wall thickness of less than 50 micrometers is to be prohibited in principle.

Do you have any questions about this news or would you like to discuss the news with the author? You are welcome to contact: Michael Öttinger

27. April 2020 Michael Öttinger