The Packaging and Packaging Waste Regulation has been revised by legal-linguists before final confirmation by the European Parliament. However, after analysis of the resulting linguistic corrections, changes were also made to the substantive content, which go beyond the usual procedure.
In April this year, the European Parliament (EP) confirmed the preliminary agreement of the text of the new Packaging and Packaging Waste Regulation (PPWR), followed by linguistic corrections by legal-linguists. The final version of the PPWR is expected to be confirmed by the EP plenary in a month's time, followed by Council confirmation.
The proofreading process is used solely to remove linguistic inaccuracies and typos. However, changes have been made to the final version of the PPWR that have a significant impact on the content and meaning of the Regulation.
Representatives of the Czech industry have drawn the attention of the Ministry of the Environment and the Office of the Government of the Czech Republic to the following problematic wording in particular:
- Change the definition of "producer" from the form "'producer' means ANY manufacturer, importer or distributor, ...." to "'producer' means THE manufacturer, importer or distributor, ....". While the original form corresponded to the idea that EVERYONE in the distribution chain is responsible for the characteristics of the packaging, but also for the waste management or reuse, because everyone is a 'producer', the new form substantively means that ONE of the links in the chain is a 'producer', because any of them is a 'producer', without defining exactly which link it is. The original form would correspond to the legislative concept of the Czech Packaging Act. The new form effectively requires the law to be amended to additionally define which link in the chain it is, or which link is responsible for which obligation arising from the PPWR. This is therefore not a mere linguistic change, but a substantive change in the definition.
- In Article 3, a new definition has been added to paragraph 11: "making available on the territory of the Member State" means any supply of packaging for distribution, consumption or use on the territory of the Member State in the course of a commercial activity, whether in return for payment or free of charge; This definition, which replaces the original definition of "placed to market of the Member State", can be quite problematic as it effectively covers any packaging that reaches the territory of the State even in mere transit. The new definition is then used in the text of the Regulation wherever it was originally "placed to market of the Member State". However, the example then applies that a truck with packaged goods passing from Poland to Austria uses packaging in the territory of the Czech Republic to protect the goods in the course of commercial activity, which makes the Czech Republic responsible for this packaging even if it is not intended for the Czech market.
It probably goes without saying that adding a completely new definition and using it in many places in the text with unclear implications is not a linguistic change. The specific implications for the CR and producers need to be analysed but may be surprising in some situations.
- In many places throughout the text, the word consumer has been confused with end-user or vice versa. The impact of these changes is substantive as they define the scope of obligations differently. The confusions are numerous and require a detailed impact analysis, which can be very substantial. An example with a fairly substantial economic impact is the amendment to Article 47 (originally 42), where paragraph 3(b) states: (b) the measures put in place or paid for by the producer or producer responsibility organisation are sufficient to allow for the return and waste management of all packaging waste in accordance with Article 48(1) and (3) and Article 50, free of charge for end users, with a frequency proportionate to the area and volume of packaging waste covered with regard to the quantity and types of packaging or packaged products made available for the first time on the territory of a Member State by that producer or producers on whose behalf the producer responsibility organisation acts; In the original text, the right to be able to return all packaging waste free of charge applied only to the consumer "consumer" whereas the new text gives this right to the end-user "end-user". This effectively shifts all the costs associated with packaging waste from the trade to the producer of the goods, hence to the Authorised Packaging Companies (APCs). This means that every tradesman will have the right to deposit packaging waste free of charge at a place designated by the AOS, and these places would have to be accessible in the same way as those designated for consumers. In real practice, this would mean making municipal collection yards available without restriction, as well as the collection network for use by traders free of charge. The costs would of course be covered by the municipalities, but the municipal collection network would have to be expanded by the capacity needed for trade waste, i.e. by tens of percent. The question is whether the waste collected in this way should then be registered as municipal waste (group 20) or trade waste (group 15). This is not a linguistic change either, but a direct change in the relationship between the producer and the end user, with major economic and logistical implications. It implies an obligation for the EPR system (extended producer responsibility) to set up collection points for tradesmen or to reimburse the costs of the tradesman for the removal of packaging waste. Just to illustrate what this would mean in combination with the introduction of the definition of "making available on the territory of Member State". If a logistics centre operates in the Czech Republic, which receives goods from Poland, transhipments them, repackages them and sends them to Austria, then the management of the resulting waste is to be paid for by the Czech AOS.
Waste industry representatives add: "It is evident that there have been not only language changes but also fundamental substantive changes in the process so far since the last democratic vote. In our view, the Czech Republic should clearly insist that the new text must be renegotiated through the whole democratic process. There are also other legitimate substantive comments on the text of the Regulation which have been sent to the European Commission's management by professional and municipal associations from individual Member States (e.g. here https://www.obaly21.cz/nemecke-asociace-pozaduji-upravu-narizeni-o-obalech). In our opinion, the new facts, as well as the actual text of the PPWR, should again be subject to the process of establishing a Framework Position for the Czech Republic. The text should be examined by both chambers of the Czech Parliament."
Industry representatives also point out that if the approved PPWR differs in substance from the text agreed by the Council and the EP, the validity of all or parts of the regulation may be challenged before the European Court of Justice.
At the end of August, ten representatives of Czech industry, trade and municipalities expressed their views on the further revision of the PPWR in a letter sent to the EU institutions. The signatories are the Confederation of Towns and Municipalities of the Czech Republic, the Association of Local Authorities of the Czech Republic, the Czech Chamber of Commerce, the Confederation of Employers' and Business Associations of the Czech Republic, the Confederation of Trade and Tourism of the Czech Republic, the Union of Employers' Associations of the Czech Republic, the Association of Municipal Services of the Czech Republic, the Czech Association of Waste Management, the Public Utility Services Association and the Czech Association of Circular Economy.
The subject of the Corrigenda correction request is to maintain the existing exemptions for the recycling targets for packaging materials under Article 6(1) of the Packaging and Packaging Waste Directive. EU Member States have negotiated legal exemptions under strict rules and these are anchored in their national legislation. Thus, in the Czech Packaging Act we have a valid exemption for recycling aluminium packaging waste, whereby from 2035 at the latest we will already meet the targets at the maximum mandatory rate of 60%. According to this still valid legal provision, investments are therefore being made and prepared with a view to 2035.
In their letter, the signatories state, among other things, that "Although the currently drafted PPWR has taken over the quoted provisions of the Directive and the stated objectives, the PPWR should also explicitly mention the related statutory exemptions that are approved and applied in Member States' legislation. Therefore, we assume that the failure to take into account the currently applicable exemptions for individual Member States is an error in the legislative process, which, however, needs to be corrected in the Corrigenda process."
(source: obaly21.cz)
