New registration and reporting obligations under the new German Packaging Act (Verpackungsgesetz) will come into force on
January 1, 2019

Under European legislation, packaging is generally subject to an extended producer responsibility; i.e. those who put packaged goods onto the market have to take responsibility for ensuring that the packaging has as little impact on the environment as possible.

Under the German law up until December 31, 2018, the obligations of producers are governed by the German Packaging Ordinance (Verpackungsverordnung – VerpackV). This will now be replaced by the German Packaging Act (Verpackungsgesetz – VerpackG) as of January 1, 2019.

The new law will bring significant changes for manufacturers, distributors, importers and online-traders putting packaging on the German market. In addition to e.g. re-defined target-rates for the recycling of certain materials, rules for the avoidance of unnecessary packaging as well as further mandatory deposits for one-way drinking-packaging and respective supplementary labelling requirements, one of the main objectives is to ensure compliance with the (already existing) obligation to participate in existing recycling schemes.

Against this background, many market players will face crucial additional registration and reporting obligations. Primarily, such obligation are directed at the producers of packaging that typically remains with end-consumers. Also online retailers or importers bringing such packaging onto the German market are regarded as such “producers”.

Under the VerpackV producers of certain packaging had to participate in recycling schemes to ensure the proper collection and recycling of materials (as such schemes operate in addition to regular municipal waste collection, these schemes are often referred to as “dual-system-schemes”) and were obliged to register with and license respective material volumes with one of (the currently nine) accepted providers of such schemes in Germany.

This system generally remains unaffected under the new law. However, due to a high rate of non compliance with registration and licensing duties in practice, the German legislature has now included a new registration and reporting regime to ensure full transparency as to a participation in the dual-system. For this purpose, a new central authority (“Zentrale Stelle”) has been created as an incorporated foundation (cf. §§ 24 et seqq.) and producers are required to register with it as well as to confirm their participation in a dual-system-scheme before putting packaging on the market (§ 9). All registrations will be published online for public access (§ 9 para. 4). Further, packaging-related data and volumes must be reported to the Zentrale Stelle by the producers on an ongoing basis (§ 10) for the comparison of the volumes reported to the Zentrale Stelle by the schemes.

Under the VerpackV, if certain volume limits of packaging were exceeded within a certain year, the producers (assisted by a respective certified professional) additionally had to provide a so-called “Declaration of Completeness” (Vollständigkeitserklärung). This obligation equally remains unaffected under the VerpackG (§ 11); however, such declaration must now be filed by May 15 of the subsequent year with the Zentrale Stelle. Due to the (unchanged) rather high annual de-minimis limits (80 tons of glass packaging, 50 tons of paper, board or cardboard packaging or 30 tons of different material packaging, cf. § 11 para. 4), this should remain of rather remote practical relevance for most producers.

It is imperative to comply with the obligations and registration requirements stipulated by the VerpackG. Breaches can lead to market bans and trigger significant administrative fines of up to € 200,000. Further, non compliance can also constitute an unfair commercial behavior and, thus, give rise to legal action by competitors as well as e.g. consumer protection agencies or environmental associations. Due to the high transparency of potential breaches, we expect a rather extensive enforcement of – in particular – the registration and licensing requirements.