The French Circular Economy Law of February 10, 2020 (Art. 62) introduced a new provision in the Environment Code (L541-10-3) whereby signage and markings likely to induce confusion regarding sorting rules may result in penalties. A Ministerial Order of November 30, 2020 defined such signage and markings and singled out the Green Dot. Another Ministerial Order of December 25, 2020 further detailed the nature of the penalties likely to be imposed by eco-organizations (see Annex, § II, 4°) and set their enforcement date from April 1, 2021.
In February 2021, various industrial organizations filed claims with the Conseil d’Etat (French Administrative Supreme Court) seeking a stay of execution of these two Ministerial Orders. Pursuant to the provisions of the Administrative Justice Code (L521-1) governing summary proceedings (référé) such claims had to demonstrate 1°) a serious doubt regarding the legality of the provisions challenged and 2°) the existence of an urgency for the court to issue a summary judgement on the matter.
Based on the briefs filed by the petitioners, the Court found that the provisions in question constituted a measure having an equivalent effect to a quantitative restriction within the meaning of Art. 34 of the Treaty on the Functioning of the European Union (TFEU) and a disproportionate one in relation to the objective pursued. As such the Court found the measure likely to create serious doubt as to the legality of the Ministerial Orders challenged.
Furthermore, the Court found that the threat of penalties forced producers to modify their packaging or distribution channels to prevent the placing on the domestic market of packaged products or packaging manufactured or imported still bearing the “Green Dot”, after April 1, 2021. In view of this impending necessity under the threat of such penalties, the Court found that the urgency condition was satisfied.
Based on the above, on March 15, 2021, the Conseil d’Etat stayed the execution of both Ministerial orders. (CE, March 15, 2021, n°450.160 – 450.164)
… and annulled
Simultaneously, three challenges were brought by various petitioners, including inter alia Der Grüne Punkt Duales System Deutschland GmbH, on the merits of the two Ministerial Orders and sought their annulment.
In a recent decision, bother orders were annulled by the Court essentially on procedural grounds. (See CE, June 30, 2023, n° 449.872 – 450.134 – 450.158)
Indeed, the rationale of the Conseil d’Etat is based on the requirements of the TRIS procedure established by Directive (EU) 2015/1535 of September 9, 2015 (Directive) whereby the European Commission must be informed of any draft “technical regulation” which Member States contemplate adopting (See Directive, Art. 5).
The Court held that in designating the “Green Dot” signage as being likely to induce confusion on the rule for sorting or bringing in waste and, with its use being potentially subject to a penalty, the contested provisions introduced a requirement, imposed for reasons of environmental protection (bearing on the life cycle of the products concerned and likely to significantly influence their marketing). As such, it considered that such provisions fell within the scope of “technical regulations” within the meaning of the Directive.
Based on this analysis, the Court further stressed that:
- when, a legislative text determines the technical regulation in question in a sufficiently precise manner for its effects to be assessed by the European Commission and the Member States of the European Union;
- when that legislative provision has been communicated in accordance with the Directive; and
- when implementing regulations do not add any other technical rule subject to this communication obligation;
there is no need for a Member State to communicate to the European Commission the implementing regulations relating to this technical rule.
In the present case however, the Court noted that although the French authorities notified the European Commission of the provisions of Article L541-10-3 of the Environment Code, pursuant to which the contested provisions were adopted, the communication of these legislative provisions, which were limited to defining a general penalty regime affecting confusing signs and markings did not enable the Commission to fully assess the effects of the technical regulation thus introduced, which applies exclusively to the “Green Dot”. In that the Court held, this communication did not suffice to satisfy the notification obligation of Art. 5 of the Directive.
Use of Green Dot still legal in France… for now.
In practical terms, for the time being, the Green Dot is no longer considered confusing under the French law and may therefore be used. Yet, it is not advisable to use it again as the French Government will very certainly come up with a properly articulated ban and submit it to the Commission with sufficient detail for it to pass the test of Art. 5 of the Directive. This is even more likely that the current Proposal for a Regulation on packaging and packaging waste, amending Regulation (EU) 2019/1020 and Directive (EU) 2019/904, and repealing Directive 94/62/EC already singles out the Green Dot as a potentially confusing symbol. (See Recital 49).
Produktkanzlei has a broad network of international cooperation partners. This article was written by David Desforges, with whom we have been cooperating on product law issues in France for many years. You can reach out to David Desforges with the following contact details: