German Packaging Act 2019 for Producers & Retailers: Without registration no commercialization!

On 1 January 2019, the new German Packaging Act (“GPA”) enters into force, replacing the German Packaging Regulation from 1998 (“GPR”). The GPA obliges more producers and distributors – including online retailers – to register and participate in a disposal and recycling system.

Most important: Without proper registration, producers or retailers must not offer the packaging – nor therefore the products contained therein – for sale – in Germany, including via e-commerce (sec. 9 para. 5). Moreover, the authorities may impose fines up to EUR 200.000,00 (sec. 34 para. 1 and 2) on producers and retailers, including importers. Furthermore, competitors and consumer associations can claim from producers and retailers to cease and desist from any sales (as decided for non-compliance with the previous GPR by the Higher Regional Court of Hamm on 17.10.2006, Case No. 4 U 92/06). In addition, authorities may confiscate the proceeds (sec. 10 Unfair Competition Act).

The GPA introduces several new changes, among which there is the obligation, under certain circumstances, to register on the online database of the newly established foundation “Zentrale Stelle” – subject to the supervision of the German Federal Environmental Agency, the Umweltbundesamt – in order to be entitled to introduce new packaging items on the market.

Packaging items that require registration and licensing under the new GPA are sales packaging (“Verkaufsverpackungen”) and secondary packaging or outer packaging (“Umverpackungen”) under two conditions: They

1. are filled with products, and
2. typically end up, after being used, as waste at (i) a private final consumer or (ii) equivalent places of waste generation (“gleichgestellte Anfallstellen”) – such as

• restaurants,
• hotels,
• canteens,
• administrations,
• hospitals,
• educational , charitable or military institutions,
• service stations etc. – all irrespective of the quantities of waste generated there
• smaller craft and agricultural businesses – if the packaging waste produced is collected in separate waste containers for paper, cardboard and board, as well as plastic, metallic and composite packaging not exceeding 1,100 litres each and subject to disposal at a conventional household rate (instead of a business-like rate).

These obligations generally also apply to online retailers – because the new GPA explicitly states that it also applies to shipping packaging: If their packaging fulfils the conditions above, they must register their packaging and participate in a disposal and recycling system. This also applies to so-called secondary packaging, in which packaged products are additionally packed. The Zentrale Stelle will provide guidance on how to interpret the GPA in form of a guideline and a catalogue (listing, in its latest 2018 draft, 36 product groups for 417 products) – which, has yet, despite being announced for autumn 2018, not been published (cf. the latest info on the consultation process).

Practical tips:

1. Producers and all other economic operators who market packaged products in Germany have to comply with the new law – even if based abroad if they sell into Germany. The term “producer” is quite broad and includes importers and distributors putting the packaging into circulation for the first time (sec. 3 para. 12 GPA).
2. Producers and retailers must not place packaging on the market if it is not registered or not properly registered though being subject to registration. Non-compliance may result in severe consequences, including fines, damage claims and confiscation of profits.
3. The new German Packaging Act applies from 1 January 2019. It implements the EU Packaging Directive 94/62/EC (as did the previous German Packaging Regulation). The new GPA aims at further raising the ecological standards and specific conditions for a well-functioning competition among the companies participating in the dual system for waste disposal and recycling and a fair behaviour among all parties on the market (thus developing the goals of the precedent GPR).
4. There is no transition period. Registration, if a new obligation not previously provided for under the GPR, must take place by 01.01.2019 at the latest. Producers, importers and retailers as all other economic operators concerned can easily register online: https://lucid.verpackungsregister.org/
5. In light of the definitions above, not requiring registration are, e.g., the following exceptions:

• any export packaging that is not going to end up as waste in Germany;
• large commercial packaging ending up as waste in the industry sector – i.e. not at private final consumers nor at equivalent places of waste generation;
• transport packaging aimed at facilitating the transportation but usually not passed on to the final consumer;
• reusable packaging and sales packaging for pollutant-containing products.

1. Producers and retailers have to comply with several further laws on packaging and their labelling if selling products within packing in the European Union (cf. the overview by the European Commission here).