The German Bundestag passed the amendment to the VerpackG in its session on 06.05.2021 on the basis of the Federal Government’s draft bill (BT-Drs. 19/27634) with the amendments from the committee recommendation (BT-Drs. 19/29385). Approval by the German Bundesrat is expected on 28.05.2021. Although the amendment retains the existing structures of the VerpackG, existing obligations are partially extended to additional players and the possibility of appointing an authorized representative is introduced. In addition, operators of electronic marketplaces and fulfillment service providers will be explicitly included in the obligation structure of the VerpackG. Finally, the amendment introduces several completely new obligations with regard to single-use plastic packaging and significantly expands the deposit obligation for single-use beverage containers. We will highlight the latter two aspects in detail in a separate blog post (our blog-post: Amendment of VerpackG – Single-use plastic packaging).
The relevant changes for manufacturers and distributors as well as for operators of electronic marketplaces and fulfillment service providers are outlined below:
Amendments regarding the registration obligation
- Until now, only manufacturers of packaging subject to system participation were covered by the registration obligation pursuant to Sec. 9 para. 1 1st sentence VerpackG. The amendment now means that, from 01.07.2022, all manufacturers of packaging within the meaning of Sec. 3 para. 14 VerpackG will be obliged to register without exception; thus, for example, also manufacturers of transport packaging, sales and secondary packaging not typically accumulating at the private end consumer, reusable packaging and single-use beverage packaging subject to a deposit. However, only manufacturers of packaging that is subject to system participation are obliged to participate in a system according to Sec. 7 VerpackG. In this context, the information to be provided during registration will be extended to the effect that in future it will be necessary to state which type of packaging is placed on the market by the respective manufacturer. CAUTION: Manufacturers who are already registered must also adapt their registration in this respect if they also place packaging other than packaging subject to system participation on the market.
- For distributors, the extension of the registration obligation means that they will also be subject to an extended sales ban in future due to the new wording of Sec. 9 para. 5 2nd sentence VerpackG. While they are currently only prohibited from offering for sale packaging subject system participation , in case its manufacturer is not or not properly registered, from 01.07.2022 they will no longer be permitted to offer for sale any packaging from manufacturers who are not or not properly registered.
- Also with regard to the registration obligation is to be noted that, likewise starting from 01.07.2022, all manufacturers of service packaging, thus for example baker’s shops, butcher’s, takeaway restaurants, will be subject to registration according to Sec. 7 para. 2 3rd sentence 3 VerpackG. Although they can still demand from the pre-distributor or producer of the service packaging that the latter assumes the complete producer obligations with regard to the service packaging (in particular registration, system participation, data reporting). However, there will be an additional registration obligation for the manufacturers concerned, which will then exist parallel to the registration obligation of the upstream distributors. CAUTION: This information will also have to be included in the existing registration by already registered manufacturers.
Comprehensive changes with regard to packaging not subject to system participation
- Within the framework of the regulations on packaging not subject to system participation under Sec. 15 VerpackG, a new No. 5 to para. 1 1st sentence clarifies that manufacturers of reusable packaging are also subject to a take-back obligation. However, this already resulted from the definition of reusable packaging in Sec. 3 para. 3 VerpackG, so that this amendment is only of a clarifying nature.
- Furthermore, Sec. 15 para. 1 VerpackG introduces a new information obligation to be fulfilled from 03.07.2021, according to which final distributors of packaging not subject to system participation must “inform the respective end consumers to an appropriate extent by means of suitable measures about the return options and their meaning and purpose“. The aim of this obligation is to increase the return rates, but the explanatory memorandum to the act does not contain any more precise specifications as to how this information obligation is to be implemented in individual cases, so that there is a certain degree of flexibility.
- In addition, the obligation to provide evidence and documentation for the fulfillment of the take-back and recovery requirements stemming from Sec. 15 para. 3 3rd sentence VerpackG will be extended from 01.01.2022 to all packaging not subject to system participation. According to the new Sec. 15 para. 3 6th sentence VerpackG, also coming into force from 01.01.2022, each manufacturer must introduce a self-monitoring mechanism for the evaluation and correctness of the documentation. The explanatory memorandum to the act also expressly leaves the type and manner of the self-monitoring mechanism open, so that each manufacturer concerned can design it according to its individual circumstances.
- Finally, Sec. 15 VerpackG introduces the obligation for manufacturers and subsequent distributors in the supply chain of packaging not subject to system participation to maintain the “financial and organizational resources” and to introduce a financial self-monitoring mechanism to ensure compliance with the obligation under Sec. 15 VerpackG. Here too, for reasons of flexibility, there are no concrete specifications as to how this obligation is to be fulfilled in individual cases.
Possibility to appoint an authorized representative
Due to the inclusion of new regulations, the previous Sec. 33 VerpackG in the new version becomes Sec. 35 VerpackG. In para. 1, the possibility of limited commissioning of third parties with the fulfillment of the obligations under the VerpackG, which already existed previously, remains unchanged in terms of content. This possibility exists for all manufacturers and distributors obliged under the VerpackG.
However, the amendment introduces the new possibility for manufacturers who do not have a branch in Germany to commission an authorized representative within the meaning of the newly introduced definition from Sec. 3 para. 14a VerpackG to fulfill the manufacturer’s obligations. This authorization must be in writing and in the German language, and each manufacturer may only authorize one authorized representative, who must be established in Germany. If the authorization is effective, the authorized representative can fulfill all the manufacturer’s obligations in his own name and, according to the unambiguous wording of the law, is even considered to be the manufacturer himself with regard to these obligations. However, it should be noted that the actual manufacturer, who is obliged per se, must continue to carry out the registration required under Sec. 9 VerpackG himself and may not commission a third party to do so.
Obligations for operators of electronic marketplaces and fulfillment service providers
Comparable to the likewise newly introduced system in the ElektroG, the current amendment to the VerpackG now also explicitly includes operators of electronic marketplaces and fulfillment service providers in the obligation structure of the VerpackG.
For this purpose, the following definitions are introduced in the new paras. 14b and 14c of Sec. 3 VerpackG:
- “Electronic marketplace means a website or any other instrument by means of which information is made available via the Internet and which enables distributors who are not operators of the marketplace to place goods on the market in their own name. An operator of an electronic marketplace is any natural person, legal entity, or partnership with legal capacity that maintains an electronic marketplace and enables distributors to place goods on the market through that marketplace.” [emphasis not in original]
- “Fulfilment service provider means any natural or legal person or partnership with legal capacity that, in the course of a business activity, offers at least two of the following services to distributors within the scope of this Act: Warehousing, packing, addressing, and shipping of goods without having ownership. Postal, package delivery, or other freight transportation service providers are not considered fulfillment service providers.” [emphasis not in original]
According to the new provisions in Sec. 9 para. 5 VerpackG and Sec. 7 para. 7 VerpackG, as of 01.07.2022, operators of electronic marketplaces may no longer enable the offering of packaging on their platform of non-registered manufacturers and/or manufacturers not participating in a system with the respective packaging. Similarly, fulfillment service providers may no longer provide their services to a manufacturer that is not registered or not participating in a system with the respective packaging as of the aforementioned date. These newly introduced prohibitions are aimed in particular at encouraging manufacturers and distributors of packaging or packaged goods based abroad to fulfill their obligations under packaging law in Germany, as otherwise their access to the market will be made considerably more difficult. The explicit prohibitions result in an implicit obligation for operators of electronic marketplaces and fulfillment service providers to obtain both a confirmation of registration and a confirmation of system participation from their customers, as violations of the prohibitions may result in a fine of up to EUR 100,000.00 per case. Although operators of electronic marketplaces and fulfillment service providers in these roles are not themselves distributors within the meaning of Sec. 3 para. 12 VerpackG, they will in future be placed on an equal footing with distributors in terms of monitoring obligations and consequences of violations.
Note: The new Sec. 7 para. 7 3rd sentence, 2nd half-sentence 2 VerpackG codifies a responsibility for shipping packaging in connection with fulfilment service providers that deviates from the previous administrative practice of the Central Agency Packaging. According to the previous administrative practice (as described in the topic paper “Information for mail order companies and online retailers (Last updated: April 2020)” of the Central Agency Packaging Register), a fulfilment service provider is considered to be a manufacturer of shipping packaging subject to registration and system participation if it actually packs the goods in the shipping packaging and the actual seller is not exclusively recognizable on the shipping packaging with its name, brand or other identification information. This is justified by the fact that VerpackG basically makes the person who actually packs the goods liable as the manufacturer. In contrast, as of 01.07.2022, the manufacturer of the shipping packaging for whom the fulfillment service provider acts will be held liable as the manufacturer who is required to register and participate in the system.
Conclusion and forecast
Against the background of the currently still incomplete implementation of the requirements of the VerpackG introduced in 2019, it remains to be seen whether the amendment will actually lead to the desired simplification and increase in transparency, or whether it will actually achieve the opposite. Since the VerpackG will in future increasingly focus not only on manufacturers of packaging subject to system participation, but on all manufacturers of packaging, all market players should familiarize themselves intensively with the amendment in order to identify the necessary need for action and implement the required measures in good time. In particular, the significantly expanded registration obligation will make it much easier in the future for the Central Agency Packaging Register and the responsible state authorities to detect a violation, since almost every company puts packaged goods into circulation and will therefore be involved in one way or another in the obligation structure of the VerpackG.
Do you have any questions about this news, or would you like to discuss the news with the author? Please contact: Michael Öttinger
