Changes to the Packaging Regulation
- The definition of packaging has moved closer to the EU packaging directive
- A change to the content of the outer packaging (term now includes other materials)
- The duty to register with the Central Packaging Registry (ZSVR)
- The duty to report dual systems to the ZSVR
- The extension of mandatory deposit for one-way drinks packaging
- The identification of single-use or multiple-use properties for final distributors of beverage containers
1. General Information about the Packaging Act
As early as 1991, the Packaging Regulation (VerpackV) was brought into being. The Packaging Regulation introduced the principle of product responsibility, obliging manufacturers and distributors of packaging to comply with regulations on taking back and recycling packaging. In order to comply with these standards, dual systems were also set up to enable those responsible to properly recycle the packaging generated by a private final consumer.
The objectives have not been changed by the Packaging Act (VerpackG) passed in 2017. It also continues to apply to all manufacturers and distributors who use packaging for the first time and thereby generate waste. However, the new law also covers new types of packaging and imposes new duties on those responsible. The Packaging Act will come into force on 1 January 2019, replacing the Packaging Regulation. Find out more in our FAQ.
Elimination of loopholes for manufacturers & distributors
Ensuring that all market participants behave in accordance with the law
To recycle more waste from private households
Use of ecologically advantageous & recyclable packaging
More control by central office of packaging Registry (ZSVR)
Reduction of the average amount of packaging
2. Duties for Online Retailers
As soon as you place goods in packaging for delivery that is typically thrown away by the end consumer, you are subject to licensing and registration duties because the selected packaging is “subject to system participation”. As soon as you fill the packaging with goods that typically accumulate as waste at the private end consumer after use, you are subject to licensing and registration duties, as the selected packaging is "subject to system participation". If you do not fulfil these duties, you are committing an administrative offence punishable by fines of up to €200,000 or a warning. Further information on fines can be found under point 8: fines.
3. The Definition of Packaging
The Packaging Act modifies and expands the previously applicable packaging concept of the Packaging Regulation (VerpackV), but also leaves the familiar intact. The following criteria still apply to packaging:
- packaging materials are not important
- The packaging serves for the protection, handling, delivery or presentation of goods
- Packaging contains goods
- They are passed on to distributors or final consumers.
There are also types of packaging that can be seen as special packaging:
Sales packaging is a unit of goods and packaging that is typically sent to the end consumer. This includes packaging that
- supports the transfer of the goods to the end consumer (service packaging)
- enables goods to be shipped to the final consumer (shipping packaging)
In particular through the introduction of shipping packaging, the packaging used in online retail is now directly recorded as packaging within the meaning of the Packaging Act. The following packaging is the most common in online retail:
- cardboard boxes
- bubble wrap, packing aids, bags
- adhesive tape, polystyrene, other filling material
- shipping envelopes of all kinds
Outer packaging is a set of goods and packaging typically offered to the consumer together with products they contain. This may involve so-called bundled packaging.
Transport packaging is the packaging that is used to facilitate the handling and transport of goods without, however, typically passing them on to the final consumer. It is not covered by the system participation duty.
4. System Participation Duty
The Packaging Act obliges manufacturers and distributors to fulfil licensing and registration duties if the selected packaging is "subject to system participation". This is the case if the packaging
- is filled with goods and
- is generated as waste after use, and if
- the private final consumer is obliged to share in the waste produced.
The sales and outer packaging mentioned under point 3 are subject to system participation. Contrary to the previous Packaging Regulation, it is now sufficient that the packaging "typically" accumulates as waste at the end consumer. As a manufacturer or distributor of packaging, you must carry out a general assessment of whether the packaging could be disposed of as waste before using it. If this is the case, you are subject to the licensing and registration duties.
However, as in the past, it is crucial that the packaging is disposed of as waste by the end consumer, which means that packaging in the industrial or commercial sector is discarded. The exact point in time when a package accumulates as waste is not decisive. As before, however, comparable locations such as restaurants, hotels or cinemas are also recorded as possible sources of packaging waste. All other comparable bodies are listed under § 3 Para. 11 VerpackG.
a) Compulsory Participation in a Dual System
If the packaging is subject to system participation, this triggers the duties for manufacturers and distributors to participate in a dual system and to license the packaging used. One manufacturer is a subgroup of distributors. According to the Packaging Act, a distributor is to be regarded as a manufacturer if it
- is being placed on the market for the first time and
- commercially into circulation and/or
- within the scope of the law.
According to this, online retailers are to be regarded as manufacturers if these conditions apply to them.
The decisive factor here is whether filled packaging is placed on the market by retailers for the first time. As a rule, this is the "filler" of packaging.
Conversely, this means: if packaged goods are directly forwarded by the manufacturer without any further packaging, no participation is necessary. Manufacturers of packaging shipped from abroad are also subject to full licensing after the wording has been expanded.
Used packaging may be used without re-licensing if it has already been licensed and is not yet registered for recovery under a dual system.
b) Exemption from the Duty to Participate
Where service packaging is used as a special type of sales packaging, this obligation may be brought forward to pre-distribution. Typical examples of service packaging are:
- bread bags
- butcher's paper
- coffee-to-go cups
- bags for fruit and vegetables
- cling film or aluminium foil
In this case, the packaging can already be purchased pre-licensed. Licensing of the service packaging by a pre-distributor, i.e. in a pre-distribution stage, e.g. the producer or the wholesaler, has to license the packaging themselves. However, pre-licensing should be documented by invoice or contract.
Shipping packages are clearly to be classified as sales packaging and not as service packaging.
In addition, reusable packaging, one-way packaging and transport packaging are not generally to be regarded as requiring system participation. Returnable packaging is intended to be reused for the same purpose after use. The so-called disposable packaging is also not covered as long as it is subject to the mandatory deposit.
c) Industry Solutions
A further exception is when manufacturers choose the so-called industry solution and take back the packaging themselves free of charge and take care of recycling accordingly. This must be reported to the Central Registry and certified by an expert before the start of the industry solution.
Manufacturers not participating in a dual system are prohibited from placing packaging on the market.
d) Dual Systems
The first dual system was founded as the "Dual System Germany - The Green Dot". There are now nine approved suppliers of dual systems in Germany. As a result of the changed legal situation, the duty to label consumer packaging with the green dot, which had existed until then, ceased to apply in 2009.
Manufacturers must participate in a dual system and provide the following information:
- material type
- mass of packaging to be involved
- registration number
The participation can either be carried out personally by the retailer or by an authorised third party. However, the Packaging Act obliges the dual systems to encourage licensing of packaging and materials that can be recycled to the highest possible percentage, thereby creating financial incentives for this. Concrete examples have not yet been mentioned. In addition, dual systems must fulfil a reporting obligation to the Stiftung Zentrale Stelle Verpackungsregister (Central Packaging Registry) under the Packaging Act. Information on manufacturers and the reported material type and mass must be transmitted for comparison.
From 1 January 2019, participation will only be possible with the registration number issued by the Stiftung Zentrale Stelle Verpackungsregister (Packaging Registry Central Packaging Registry).
e) Overview of Dual Systems
- BellandVision GmbH
- The Green Dot - Duales System Deutschland GmbH
- INTERSEROH Service GmbH
- Landbell AG for retrieval systems
- NOVENTIZ Dual GmbH
- Reclay Systems GmbH
- RKD Recycling Kontor Dual GmbH & Co. LIMITED PARTNERSHIP
- Veolia Environmental Service Dual GmbH
- Zentek GmbH & Co. LIMITED PARTNERSHIP
5. Registration Duties
The licensing duty in a dual system triggers a registration duty with the newly created Stiftung Zentrale Stelle Verpackungsregister (Central Packaging Registry) and must take place before packaging is placed on the market. The following information must be provided during registration:
- Name, address and contact details
- One authorised representative
- The manufacturer's national identification number, including the relevant tax identification number
- The brand name under which the manufacturer places the system packaging on the market
- Declaration of participation in a dual system or an industry solution
- Declaration that all information provided is true and correct
- Initial registration with the Stiftung Zentrale Stelle Verpackungsregister (Central Packaging Registry) is free of charge. The registration is purely electronic and can therefore be done via computer or smartphone.
The registration must be done by the retailers themselves. The assignment of third parties is not permitted. After registration, retailers receive their personal registration number. Without this, participation in a dual system is not possible. Packaging may not be placed on the market without proper registration.
a) Duty to Register Data
In addition to registration, manufacturers and registered distributors are also obliged to forward all information relating to packaging to the Central Registry. This concerns:
- registration number
- type of material and mass of packaging
- name of the dual system of participation
- participation period
b) Declaration of Completeness
In the event that manufacturers are required to purchase system-participating packaging in the amount of
- more than 80,000 kilograms of glass
- more than 50,000 kilograms of cardboard, paper and cardboard, as well as
- more than 30,000 kilograms of the remaining materials
they are obliged to submit a declaration of completeness to the Central Registry in accordance with § 11 VerpackG by 15 May of the following year. This declaration must be audited and certified by a registered expert, auditor, tax consultant or accountant. The transmission has to take place electronically. In special cases, the Central Registry may also require manufacturers who do not exceed the thresholds to pay a levy.
For most online retailers, a declaration of completeness should not be necessary due to the exemption.
6. Zentrale Stelle Verpackungsregister (ZSVR) (Central Packaging Registry)
The newly created position was founded on 15 May 2017 to implement the VerpackG with headquarters in Osnabrück. All tasks of the ZSVR are listed in § 26 VerpackG, among others:
- Acceptance of registrations
- Assignment of the registration number
- Publication of registrations on the Internet
- Checking the data message on packaging mass
- Notification of infringements to the regional authorities
7. LUCID Database
For the first time, the VerpackG introduces an online database that can be viewed free of charge by all outsiders and contains all registrations. This database contains the following data:
- Registration number
- Registration date
- Name, address and contact details
- The brand names under which the manufacturer places his packaging subject to system participation on the market
Registrations are published either by a permit in the period until 2019 and the associated pre-registration, or subsequently after successful registration.
Both the participation in a dual system and the corresponding registration are determined by the Packaging Act as a legal duty. A violation of this rule is to be considered a misdemeanour. A fine of up to €100,000 per case can be imposed for a registration that has not been completed. Non-participation in a dual system can be punished with a fine of up to €200,000.
In addition, the publication shall serve the purpose of guaranteeing fair competition. This allows competing companies to use the database to check whether a retailer has fulfilled the necessary registration requirements.
Even when the Packaging Regulation was passed, courts had confirmed that a violation of the licensing duty constituted a violation of the law against unfair competition. Violations can therefore be warned under competition law.
The burden of demonstrating that a licence already exists lies with the distributors who place sales packaging on the market. This means that retailers must always be able to prove in the event of a case that the entire packaging (including bubble wrap and/or adhesive tape, for example) has actually already been licensed. If they are not able to prove this properly, they themselves are obliged to carry out the licensing.
Legal advice & warning representation from Händlerbund
As part of the Premium or Unlimited membership package, you can take advantage of legal advice, depending on the scope of services, and prepare yourself comprehensively for the new packaging law. If you should receive a warning for incorrect implementation in the future, we will advise you and help you with further procedures in the case of a warning.