Compared to the draft bill of 23.03.2022, the draft now submitted (hereinafter “EWKFonds-E”) essentially contains only editorial changes. In terms of content, the extended producer responsibility pursuant to Art. 8 para.1 to 7 Directive (EU) 2019/904 continues to be transposed into national law. Accordingly, the central element of the new Single-Use Plastics Fund Act is a single-use plastics fund administered by the Federal Environment Agency (UBA). This fund, which is financed by the manufacturers of the products concerned, serves to reimburse the costs incurred by public waste management authorities and other eligible legal entities under public law for disposal and cleaning in public areas. Previously, these were borne by the general public.
A. Scope
The draft Single-Use Plastics Fund Act regulates in particular the product responsibility within the meaning of Sec. 23 para. 1 to 3 KrWG of manufacturers of single-use plastic products in accordance with Annex 1 EWKFondsG-E.
The legal definition of single-use plastic product in Sec. 3 para. 1 EWKFondsG-E corresponds to Sec. 2 No. 1 EWKKennzV (our news on this: EWKKennzV) and Sec. 2 No. 1 EWKVerbotsV (our news on this: EWKVerbotsV).
Annex 1 conclusively lists the following affected product groups:
- To-go food containers
- Packers and wrappers with food content for to-go consumption
- Beverage cups and containers including their closures and lids
- Plastic carrier bags with a wall thickness of less than 50 μm
- Wet wipes
- Balloons
- Tobacco filters (products)
A manufacturer within the meaning of Sec. 3 No. 3 EWKFondsG-E is a person who, as a first distributor established in Germany, makes disposable plastic products as defined in Annex 1 EWKFondsG-E available on the market on a commercial basis or, in the case of distribution from abroad, sells such products directly to private households or other users.
Whether these criteria are met can be determined by the UBA in accordance with Sec. 22 EWKFondsG-E at the request of the manufacturer, the authorized representative or at its own discretion.
B. Single-use plastic fund
Secs. 4 to 6 EWKFondsG-E introduce a single-use plastic fund at the UBA. In addition, its administration and financing are regulated. The purpose is to reimburse the costs legally defined in Sec. 3 No. 12 to 16. Financing is provided by the manufacturers, who are obligated to pay a special levy, the so-called single-use plastic levy, in accordance with Sec. 12 EWKFondsG-E.
C. Manufacturer’s obligations
I. Registration
Pursuant to Sec. 7 EWKFondsG-E, manufacturers have to register before commencing their activities via the information technology system provided by UBA pursuant to Sec. 8 para. 1 EWKFondsG-E with the information specified in para. 2. Manufacturers who have already commenced their activities before the new law will come into force must register by 31.12.2024 in accordance with Sec. 29 para. 2 EWKFondsG-E. Pursuant to Sec. 7 para. 5 1st sentence EWKFondsG-E, UBA will then publish the registered manufacturers on its website, comparable to the already existing registers pursuant to ElektroG, BattG and VerpackG.
Insofar as the information in accordance with Sec. 7 para. 2 1st sentence Nos. 1 to 4 EWKFondsG-E is already available through registration in accordance with Sec. 9 of the Packaging Act at the Central Packaging Register, UBA is obliged and authorized, with the consent of the manufacturer, to collect, store and use the data available there. Furthermore, UBA shall transmit parts of the data of all manufacturers registered in the previous calendar year to the aforementioned Central Agency Packaging Register and the Federal Statistical Office by 31.01 of each year, insofar as this is necessary for the fulfilment of their respective tasks, Sec. 8 paras. 3 and 4 EWKFondsG-E.
According to Sec. 9 EWKFondsG-E, products from manufacturers not (properly) registered in this sense may not be made available on the market for the first time, sold or offered for sale on a commercial basis. In addition, operators of electronic marketplaces may not enable such offering, and fulfillment service providers may not provide services in relation to such products. Here, too, there will therefore be a synchronization with the requirements of the Packaging Act in particular.
II. Authorized representative
Pursuant to Sec. 10 EWKFondsG-E, manufacturers not established in Germany have to appoint an authorized representative in writing and in the German language to fulfill the manufacturer’s obligations, with the exception of registration pursuant to Sec. 7 para. 1 EWKFondsG-E and notification pursuant to Sec. 11 para. 1 EWKFondsG-E (which both have to be done by the manufacturer itself). To this extent, the authorized representative shall be deemed to be the manufacturer and shall fulfill the obligations in its own name.
III. Reporting obligations
According to Sec. 11 para. 1 EWKFondsG-E, manufacturers have to report annually to UBA by 15.05 the single-use plastic products they have made available or sold on the market for the first time in the preceding calendar year in accordance with Annex 1, broken down by respective type and mass, in kilograms. The report shall be subject to verification and confirmation by a registered expert within the meaning of Sec. 3 para. 15 of the Packaging Act or a certified public accountant, tax advisor or sworn auditor registered in accordance with Sec. 27 para. 2 of the Packaging Act. The confirmation shall be provided with a qualified electronic signature and transmitted electronically by the manufacturer to UBA together with the data notification and the test report. For this purpose, UBA provides a uniform electronic form, regulates the detailed procedure and publishes the data annually on its website by 31.12. If there is any suspicion of incorrectness or incompleteness, UBA can demand further documentation from the manufacturer. If the suspicion is not dispelled, the report is deemed not to have been submitted. This would be an enormously far-reaching consequence in the case of mere suspicion. If a manufacturer has not submitted a report, UBA will make an estimate on the basis of previous reports and other available data, Sec. 13 para. 2 EWKFondsG-E. According to Sec. 11 para. 4 EWKFondsG-E, anyone who has made available or sold a total of less than 100 kg of single-use plastic products according to Annex 1 on the market for the first time in the previous calendar year is exempt from the reporting obligation.
The reporting requirement is of particular importance for manufacturers because the annual single-use plastic levy is calculated by multiplying the mass by the respective levy rate in accordance with Sec. 13 para. 1 2nd sentence EWKFondsG-E. Pursuant to Sec. 14, the levy rates shall be determined by the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (BMUV), after hearing the parties involved and without the consent of the Bundesrat, by 31.12.2023, for each type of single-use plastic product in euros per kilogram in accordance with Annex 2 by statutory order. They shall be reviewed regularly, at least every five years, and adjusted if necessary.
D. Obligations of the beneficiaries
Pursuant to Sec. 15 para.1 EWKFondsG-E, public waste management authorities and other legal entities under public law that wish to claim reimbursement of their costs pursuant to Annex 2 must be registered with the UBA with the information specified in para. 2. The procedure is the same as for producer registration. Pursuant to Sec. 17 para. 1 EWKFondsG-E, the reimbursement requires that the entitled party has provided information on the services causing the costs within the meaning of Sec. 3 No. 12 to 15 EWKFondsG-E by 15.05 of the year in question.
The funds are then disbursed in accordance with Sec. 19 EWKFondsG-E on the basis of a points system to be defined by a further statutory instrument. The point value is announced annually on 30.09 and, pursuant to Sec. 20 para. 1 EWKFondsG-E, corresponds to the quotient of the disbursement funds available for disbursement from the Single-Use Plastics Fund (total disbursement amount) and the number of points of all eligible persons (total number of points).
E. Sanctions
Sec. 26 EWKFondsG-E provides for a fine of up to EUR 100.000,00 for intentional or negligent violations of the aforementioned producer obligations. In addition, items placed on the market in violation of the regulations may be confiscated pursuant to Sec. 27 EWKFondsG-E.
F. Integration into the existing regulatory system
The EWKFondsG is to be integrated into a strukture of national regulations as an act of implementation of Directive (EU) 2019/904. In particular, the Single-Use Plastic Ban Ordinance (our news on this: EWKVerbotsV), the Single-Use Plastic Labeling Ordinance (our news on this: EWKKennzV) and the Packaging Act (our news on this: Novelle VerpackG) are to be mentioned. The latter is now amended by Art. 2 of the draft to the effect that it now refers to the EWKFondsG in Sec. 26 para. 1 S. 2 Nos. 30, 31, 27 and para. 4. This represents the counterpart to the data exchange process laid down in Sec. 8 EWKFondsG-E.
G. Further course of proceedings
The notification procedure now carried out vis-à-vis the EU Commission serves to avoid potential trade barriers already at the draft stage. The standstill period will end on 24.10.2022. Comments received from WTO members by then will be discussed in accordance with the TBT Agreement. Subsequently, the national legislative process can continue. The legislative process is currently not expected to be completed until the end of the 1st quarter of 2023 at the earliest.
According to Art. 3 para. 2 of the draft, both the provisions on the duty to pay and the duty to register are to enter into force on 01.01.2024. The provisions on annual data reporting, on the other hand, will not enter into force until 01.01.2025, so that the data reports must be made for the first time by 15.05.2025, with the data to be submitted relating to the calendar year 2024 then completed. In all other respects, the Act will enter into force on the date of promulgation.
Conclusion
On the one hand, the EWKFondsG establishes a market access barrier for unregistered manufacturers. On the other hand, manufacturers are well advised to comply with their notification obligations, since in the event of an estimate, not only an administrative fine might be imposed, but experience also shows that a so-called estimate surcharge is assumed at the expense of the manufacturer. However, there is still considerable legal uncertainty with regard to the specific amount of the single-use plastics levy, as this depends to a large extent on the legal ordinances that have yet to be issued. Here, the industry has an opportunity to exert influence via the Single-Use Plastics Commission that should not be underestimated.
Do you have any questions about this news or would you like to discuss it with the author? Please feel free to contact: Michael Öttinger
