May 12, 2022
Germany’s Ministry for the Environment circulates proposal on implementation of Extended Producer Responsibility regime for single-use plastic items
At the end of March 2022, the German Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (the Ministry) circulated a first draft of legislation regarding the implementation of an extended producer responsibility (EPR) regime for certain single-use plastic items. This would come into effect as of 1 January 2024, as required by the Directive (EU) 2019/04 – otherwise known as the Single-Use Plastic (SUP) Directive, which is related to reducing the impact of certain plastic products on the environment. The draft still needs reconciliation with different stakeholders in accordance with the usual legislative process so modifications to the draft may occur.
The SUP Directive, and consequently the German legislation, aim to reduce waste and to stimulate better use of plastic as a resource and are also aligned to broader circular economy ambitions. As a result, producers of single-use plastic items shall be responsible for waste management and recycling, cleaning of public areas as well as education and consumer awareness.
New obligations under the regime would impact a range of business transactions including: local (German) companies or manufacturers placing single-use items in the domestic market which includes importers, persons conducting intra-community acquisitions from other European Union (EU) Member States in addition to foreign e-commerce sellers. Obligated parties established outside Germany (i.e., business-to-consumer e-commerce sellers) must contract with an "authorized person" to fulfill their obligations.
Scope of the levy
The legislative scope intends to cover all goods mentioned in Appendix E of the EU Directive:
The amount of the levy will be defined in the secondary legislation, which is to be published by the end of 2022. Based on the current proposal, businesses will be able to register and ask classification rulings for single use items as of 1 January 2023. The levy and corresponding compliance obligations would apply as of 1 January 2024.
The levy will be paid by businesses who place a product in the German market for the first time (including distance sales). The amount owed will be calculated based on annual declarations to be submitted by the business. If the persons placing product(s) that contain single-use items are not established in Germany, this will need to be actioned by their German representative, who must have registered beforehand.
The Ministry plans to establish a commission on single-use plastic, which will advise the Ministry on the levy amount, the score system and questions on which products are in scope of the regulation. The commission will be comprised of 12 members; half will be representatives from the producer industry, and the other half will be representatives of waste management businesses, consumer and environmental organizations as well as representatives from local governments.
Revenues generated will flow into a new Single-Use Plastic Fund (the Fund), which will be managed by the Federal Environmental Agency. The Fund will finance the administration of collection and refund procedures. The remaining revenues are intended to be used to refund costs incurred by the public waste management authorities and other legal entities under public law who carry out activities such as waste management, cleaning and awareness building. These bodies must register and file official refund requests. The refund will be paid based on a score allocated to the respective body. Details on how the score will be allocated will be part of a secondary legislation, which is to be published at the latest by the end of 2022.
A penalty scheme will be in place for cases of incompliance (e.g., non-registration, incorrect declaration of amount of single-use plastics). The authorities will also be qualified to seize all goods on the market in cases of non-compliance. In addition, the penalty regime includes the ability to impose the sanctions against those businesses enabling non-compliant operators to offer their goods on the German market (e.g., electronic interfaces/online marketplaces).
Businesses who sell impacted goods should consider the financial impacts, monitor further legal developments and well in advance prepare their operations to comply to the new obligations. It will be important to: (i) identify products subject to the levy; (ii) prepare for the filing requirements; and (iii) if needed, contract with an authorized person to fulfill obligations under the regime.
In addition, businesses should be aware that another form of plastic packaging levy/ tax is being evaluated from a political perspective in Germany. This would be a separate measure designed to refinance the cost of the EU Plastic Levy, which has to be paid annually from the German Federal Budget to the EU Budget. The EU Plastic Levy sees Member States paying €0.80 per kilogram of plastic packaging waste that is not recycled.
For additional information with respect to this Alert, please contact the following:
EY Law Rechtsanwaltsgesellschaft Steuerberatungsgesellschaft
Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft