Legal background

The ordinance on avoiding and recycling packaging waste (German Packaging Ordinance – VerpackV) dated 12 June 1991 (BGBl. I, 1234 [Federal Law Gazette]) placed responsibility for the disposal of packaging into the hands of manufacturers and distributors. For the first time, this introduced comprehensive waste product responsibility in Germany for part of the waste legislation on the basis of § 14 section 2 sentence 3 nos. 1, 2 and 3 of the waste management act dated 27 August 1986 (BGBl. I, 1410 [Federal Law Gazette]).

When the German Packaging Ordinance was enacted, the annual packaging consumption amounted to approximately 15.3 million tons. The consumption of one-way packaging alone amounted to approximately 13.1 million tons. Due to the short service life of packaging, particularly one-way packaging, this waste was awarded special significance in relation to the overall volume of waste. The German Federal Government was also faced with the problem that disposal site capacity in many regions of Germany at the time was only sufficient for another two to five years. Waste incineration plants and new disposal sites were not available in sufficient quantities in order to deal with the volume of waste to be produced in the future as well. Packaging waste is the most important type of household waste and household-like commercial waste, with approximately 50% according to volume and roughly 30% according to weight. Relevant measures in the area of packaging were therefore particularly urgent in order to fight serious shortages in waste disposal facilities.
Comprehensive return, recycling and deposit obligations for manufacturers and distributors formed the central part of the product responsibility introduced by the Packaging Ordinance. According to the new regulations, every company that uses packaging must accept its return free of charge following use and subsequently ensure recycling. In order to fulfil these stipulations, § 6 section 1 sentence 1 German Packaging Ordinance obligates those who put sales packaging intended for private consumers into circulation for the first time to participate in an authorised waste disposal and recycling system pursuant to § 6 section 3 German Packaging Ordinance (“dual system”). This participation obligation is not applicable if manufacturers and distributors participate in an “industry solution” pursuant to § 6 section 2 German Packaging Ordinance. In the case of an industry solution, the legal obligations connected with packaging are fulfilled pursuant to § 11 German Packaging Ordinance by a “third party” that organises the separate collection and recycling of packaging at special waste generation sources – primarily in small trade. In addition, pursuant to § 10 German Packaging Ordinance, any company that puts sales packaging into circulation that amounts to more than 80,000 kg/a of glass, more than 50,000 kg/a of paper, cardboard and cardboard packaging or more than 30,000 kg/a of aluminium/tin plate/plastic/compounds must submit a declaration to the locally responsible Chamber of Industry and Commerce every year before 1 May stipulating the packaging data for the previous calendar year (“declaration of completeness”).
After national regulations emerged that governed the avoidance and recycling of packaging waste in several European states (e.g. France, Belgium, Austria), the European Union sought harmonisation by means of a mandatory overall solution in the area of packaging. As a result, the EU Packaging Directive (Directive 94/62/EG) on packaging and packaging waste came into effect on 20 December 1994, changed by Directive (EG) No. 1882/2003. The main objectives of this directive are the avoidance and reduction of environmental consequences due to packaging and packaging waste with the concrete target of reducing packaging waste throughout Europe by 50%. The directive stipulates content and basic conditions that must be integrated into the national legislation of all member states of the European Union. Each member state must therefore implement the necessary measures to set up return, collection and recycling systems for used packaging.

Details and comments in Flanderka/Stroetmann: Verpackungsverordnung – Kommentar für die Praxis unter vollständiger Berücksichtigung der 5. Änderungsverordnung, 3rd edition, Heidelberg 2009