Report suggests material bans and exemptions may be in breach of EU law : Plastic packaging producers want to remove material-specific rules in PPWR

Packaging is a well known source of ever increasing waste. The EU total having increased from 66 million tonnes in 2009 to 84 million tonnes in 2021. In 2021, each European generated 188.7 kg of packaging waste. This figure is expected to rise to 209 kg by 2030 if no additional measures are adopted. The European Union (EU) is more than willing to take on this problem and started the process of not only adapting the so called Packaging and Packaging Waste Directive (PPWD), but also turning it into a regulation. The difference being that a directive defines objectives to be achieved by EU Member States and allows flexibility in the way these objectives are achieved, while a regulation is directly applicable and mandatory in its entirety and aims to achieve uniformity in the application of EU law across the EU. The European Commission has very ambitious goals and in November 2023 the European Parliament adopted its position on the new EU-wide rules.

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Rapporteur Frédérique Ries (Renew, BE) said back in November: "Recent events in Europe, and particularly in Belgium, concerning water pollution by PFAS chemicals show the urgent need for action. By voting to ban "forever" pollutants in food packaging, the European Parliament has shown that it seeks to protect the health of European citizens. Regarding plastics, the contract has been fulfilled, since my legislative report tackles the heart of the issue by setting tougher waste reduction targets for plastic packaging. Unfortunately, on the circular economy, and prevention in particular, the outcome of the plenary vote is not so positive and ignores the reality of the figures: a 30% increase by 2030 if we don't act now. Of the 3Rs (Reduce, Reuse, Recycle), only recycling escaped unscathed. The end of throwaway packaging is still a long way off!"

The criticism shown here is shared by NGOs such as Zero Waste Europe. The non-governmental organisation criticised the "watered-down text" and listed various points where the Parliament's adoption of the regulation fell short: e.g. reuse targets with derogations, not introducing a credit-based system for recycled content targets and the failure to make mixed waste sorting mandatory.

But know it's the plastic packaging producers that make themselves heard regarding the PPWR. European Plastic Converters (EuPC), IK Industrievereinigung Kunststoffverpackungen e.V., and Elipso (the trade associations representing plastic packaging manufacturers in Germany and France respectively) have commissioned global law firm Dentons to conduct a comprehensive assessment of the proposed European Union (EU) Packaging and Packaging Waste Regulation (PPWR). This evaluation focuses on certain provisions, termed as "Plastic-Discriminatory Provisions," found within the drafts proposed by the European Commission, the EU Parliament, and the Council of the EU. Consequently, EuPC, IK, and Elipso have come together to encourage Member States and the European Parliament to remove material-specific rules from the PPWR in the ongoing trilogue negotiations.

The Plastic-Discriminatory Provisions encompass various regulations that target plastic packaging or provide exemptions for other packaging materials. These provisions are categorized into four groups, addressing bans solely on plastic packaging, exemptions for specific packaging materials from design for recycling requirements and recycled content quotas, re-use requirements and quotas, and waste reduction targets.

The assessment evaluates the PPWR against applicable EU legal standards, particularly focusing on the principle of equal treatment and proper legislative procedure.

Substantive Legal Standard: The principle of equal treatment requires comparable circumstances to be treated equally, unless there is an objective justification for differential treatment. The Plastic-Discriminatory Provisions, by discriminating against plastic packaging without objective justification, likely violate this principle. Additionally, these provisions undermine the principle of material neutrality and are not covered by the EU legislature’s discretion.

Procedural Legal Standard: The EU principle of proper legislative procedure necessitates the consideration of all relevant factors and circumstances. However, many Plastic-Discriminatory Provisions were not included in the Commission's Impact Assessment and lack specific justification in the drafts proposed by the EU Parliament and the Council of the EU. This indicates a failure to properly exercise discretion in the legislative process.

“It’s still not too late,” said Martin Engelmann, managing director of the German IK Industrievereinigung Kunststoffverpackungen. “We are calling on the Council and Parliament to remove the special rules for plastic packaging and exemptions for other packaging materials in the ongoing trilogue negotiations. This is the only way to create the legal and planning certainty that companies need for the transformation to a circular economy.” His colleague Bernard Merkx, director general of EuPC added: “Council and Parliament have so far ignored the existing scientific facts and findings on the benefits of plastic packaging in a climate-neutral circular economy. To make matters worse, the large number of plastic discriminations in the PPWR completely reverses the principle of material neutrality. The report shows the legislator clear limits.”

The assessment concludes that the Plastic-Discriminatory Provisions likely violate both substantive and procedural EU legal standards. These provisions deviate significantly from the original material-neutral approach intended by the European Commission, undermining the objectives of the PPWR to prevent negative environmental impacts of packaging and enhance recycling and circular economy practices. Addressing these concerns, so the report states, is crucial to ensure fairness, effectiveness, and legal compliance within the proposed regulation.