Executive summary

On 9 April 2022, the Official State Gazette published Law 7/2022 on Waste and Contaminated Soils (referred to as the Law). The new Law aims to establish the principles of the circular economy, as well as contribute to the fight against climate change and the protection of the marine environment.

Specifically, the Law addresses the obligation for Spain to transpose two European Union (EU) Directives: first, Directive (2018/851) which will modify the Waste Framework Directive and second, the Single-Use Plastics Directive (2019/904), where the purpose is to reduce the environmental impact of certain plastic products.

The Spanish legislature has approved a new tax on non-reusable plastic packaging, which will take effect as of 1 January 2023. The new tax has a very broad scope, tax rate of €0.45 per kg of non-recycled plastic packaging and is envisaged to collect approximately €724m of revenue annually for the Government. It is configured similarly to the new plastic packaging tax approved in Italy, which is also expected to enter into effect on 1 January 2023. However, there are greater differences compared to the plastic packaging tax already in force since 1 April 2022 in the United Kingdom (UK).

The new tax will impact most industrial and consumer products businesses, as it: (i) is applicable on the manufacturing, importation and intra-community acquisition of non-reusable plastic packaging for its final use within the Spanish market; (ii) covers both the transactions of (empty) packaging materials itself and packaged products; and (iii) is applicable to primary, secondary and tertiary packaging.

Detailed discussion

Background

Over the past years, the environmental impacts of extensive plastic use have been attracting the attention of Spanish tax legislators.

On 28 February 2020, the Ministry of Finance submitted a public consultation regarding the introduction of a tax, which aimed to tax the "single-use plastic articles intended to contain or protect goods or food products." The new excise tax is not included within a tax law led by the Ministry of Finance, but within an environmental law supported by the Ministry for the Ecologic Transition.

Despite the strong commitment for the new Law, multiple reasons such as the pandemic, complexity, and weak Congress majorities have led to a longer approval process than usual.The Government approved a first draft of the Law in June 2020 however, the formal proposal of the Law was made public in May 2021. From then until now, extensive discussions have taken place in Parliamentary sessions (both in the Congress and in the Senate).

As of 1 January 2021, the EU approved a contribution based on non-recycled plastic packaging waste generated in EU Member States. This new own resource for the 2021/2027 EU budget is applied on a uniform rate of €0.80 per kilogram of weight of non-recycled plastic packaging waste generated in each Member State. Looking across Europe, countries such as the UK and Italy have approved their own plastic packaging taxes and other countries are considering to implement or amend existing (plastic) packaging taxes and regulations. It is, however, worth noting that while the new Spanish plastic packaging tax is not an implementation of an EU-harmonized plastic packaging tax per se, the European context is certainly favorable for this new tax.

Main characteristics of the tax

Nature

The tax is an indirect (excise) tax with an environmental purpose. It aims to internalize the environmental costs related to the manufacturing and consumption of plastic packaging in the price of final products.

Taxable event and scope

The taxable event is the manufacturing, import or intra-community acquisition of non-reusable plastic packaging for its use within the Spanish market. The plastic packaging tax captures a broad concept of "non-reusable plastic packaging" in its scope, which includes:

1. Non-reusable plastic containers (the Law provides definitions of "non-reusable," "plastic" and "container" for the purpose of this tax)
2. Semi-finished plastic products (e.g., preforms, thermoplastic sheets) intended for production of non-reusable plastic containers
3. Plastic products aimed to facilitate the closing, trading or presentation of the non-reusable containers

Further considerations are:

• Tax point for manufacturing is deferred up to the first sale of the products within Spain. In addition, particular rules apply for imports and intra-EU acquisitions.
• Plastic containers are not only taxed when they are solely the object of a commercial operation (empty packages), but also when the transaction refers to a packaged product for which the package is complying with its function (filled packages).
• Products containing more than one material will be taxed exclusively based on the weight of the non-recycled plastic content. Therefore, it is not necessary that plastic is the main material of the package.
• In contrast to the UK plastic packaging tax, there is not a threshold of recycled content to determine the taxability of the product.

Products sent outside of Spain

To ensure the tax is not effectively paid for products shipped outside of the Spanish territory (i.e., it is not paid ab initio or reimbursed after payment), the Law provides a complex set of mechanisms. The mechanism used will be different depending on the condition of the party sending the goods abroad:

• Products sent abroad by the Spanish manufacturer: non-taxation
• By an owner of products in Spain (not the manufacturer): refund
• By the intra-EU purchaser: exemption / deduction (depending on the circumstances)
• By the importer: refund (unless no payment is due because goods have been placed under a Customs Warehouse regime)

Exemptions

The Law provides a number of exemptions including:

• Medicines, sanitary products, meals for special medical uses, sanitary hazardous wastes
• Products inadequate for use or destroyed
• Low-volume operators: intra-community acquisitions and imports of non-reusable plastic packaging when the weight of the non-reusable plastic packaging does not exceed 5kg per month

A deduction/refund system will also be established for these same cases to cover scenarios where the tax has already been paid and needs to be reimbursed.

Tax base and tax rate

The tax base is the quantity, expressed in kilograms, of non-reusable plastic packaging.

Recycled plastic, either as a result of mechanical or chemical recycling processes, is not taxable. Taxpayers may be able to provide a certificate issued by an accredited entity proving the amount and the recycled nature of the product.

The tax rate will be €0.45 per kilogram.

Taxpayer

Manufacturers of products subject to the tax and those who perform intra-community acquisitions or imports into Spain will be considered as taxpayers.

Taxpayers not established in the Spanish territory must appoint a plastic packaging tax representative to represent them before the Tax Administration. Representatives must be duly accredited before taxable activities take place.

Collection procedure and other formal obligations

No specific tax return has been proposed yet. This will be covered at a later stage by means of a Ministerial Order. According to the Law, main formal obligations for the taxpayers and other participants in the supply chain, will be as follows:

• Filing of periodic plastic tax returns will be mandatory for manufacturers and intra-EU purchasers of taxable plastic packaging products. The obligation will be monthly or quarterly, depending on the value added tax filing frequency.
• Imports for plastic packaging tax purposes are to be declared through customs import declarations. There is an obligation to disclose the weight of non-recycled plastic in the customs declaration. The importer will also be required to disclose if the low volume exemption threshold (5kg of taxable products per month) applies.
• Registration of taxpayers prior to the commencement of their activity. A national tax census will be created for this purpose.
• Appointment of a representative for non-established taxpayers.
• Proof required for refunds, exemptions, etc.

Accounting obligations include:

• Manufacturers will need to comply with an obligation of e-submission of movements related to raw materials, final products, etc., via the authorities' website (excise immediate reporting)
• Intra-EU purchasers will need to comply with a plastic packaging tax record, to be filed periodically before the Excise Office

The Law has resolved the issue regarding content of invoices by distinguishing the positions of:

• Manufacturers of the plastic package will be obliged to charge the tax quota (and to disclose the plastic weight) in the invoice documenting the sale of the products. If no quota is due because an exemption applies, the manufacturer will be required to identify the corresponding legal provision allowing for the exemption.
• Other participants in the supply chain will only be obliged to disclose the plastic packaging tax information corresponding to the products (tax due, plastic weight, application of a relevant exemption) if the customer requests it. Information may be disclosed in the invoice itself or in a separate certificate. There is no obligation to supply any plastic packaging tax information in the simplified invoices.

Details of said formal obligations are to be developed by means of the secondary legislation (no draft of the Ministerial Order is available yet). Therefore, some obligations could be simplified or exempted for certain categories of taxpayers.

Penalties and surcharges

• Lack of tax payment: 50% to 150% of the amount unpaid
• Surcharges (no penalties) are due for late payment under a voluntary disclosure
• Formal infringements generally lead to fixed penalties. Some tougher proportional penalties are envisaged for serious infringements.

Next steps

The tax will be effective as of 1 January 2023. Therefore, companies have a window to assess the potential impact of this new tax on their business, considering the products covered, the relevant flows (inbound and outbound) and the associated obligations. Elements to focus on include identifying potential gaps in terms of data availability, internal processes, and resources, with the aim to design and implement the appropriate corrective actions promptly.

It is important to continue monitoring further legislative developments, as the secondary legislation is still to be drafted and there will be an opportunity to present observations and comments to the Tax Authorities. However, the content of the published Law is comprehensive enough to allow companies to start preparing now and also prepare for the potential adaptations that may be necessary in order to comply with the tax as from 1 January 2023.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young Abogados, Madrid

• Pedro Gonzalez-Gaggero | pedro.gonzalez-gaggero@es.ey.com