Council’s and Parliament´s more moderate approach

At the end of 2022, the European Commission submitted a Proposal for a Regulation on Packaging and Packaging Waste (PPWR), which caused a great deal of discussion in the EU. The PPWR is intended to replace the previous Packaging and Packaging Waste Directive and to set uniform standards in the EU for recycling and reuse, thereby reducing single-use packaging and preventing packaging waste.

At the end of 2023 both the Parliament and the Council agreed on their respective positions with respect to the Commission’s proposal. These two decisions will serve as negotiating mandates for the following so called ‘trialogue’ that aims at reaching an agreement on the final text of the PPWR between the Parliament and the Council.

The Parliament as well as the Council proposed numerous amendments to the Commission’s draft of the PPWR. While some of these changes are merely of clarifying nature, other changes may have a significant impact on the future obligations of economic operators. For example, the Council and the Parliament are proposing changes to certain targets, the list of prohibited packaging and the applicability dates. Critics have already taken position and particularly object to the Parliament's proposed amendments as watering down the Commission's proposal. At the same time, however, the proposals of the Parliament and the Council have earned credit with adapting the Commission's very ambitious proposal to the actual conditions of the industry.

Recyclability of all Packaging on the Market

While the Commission’s proposal of the PPWR only empowered the Commission to adapt delegated acts on the designed-for-recycling criteria, both the Parliament’s and the Council’s proposed amendments will mandatorily require the Commission to adapt delegated acts on the designed-for-recycling criteria and the recyclable-at-scale criteria. According to both the Parliament's and the Council's proposal, the applicability of the design-for-recycling and recyclable-at-scale requirements shall be dependent on the publication of corresponding delegated acts. Thereby, economic operators will be given more time to ensure compliance of their packaging with the designed-for-recycling and the recyclable-at-scale criteria if the Commission does not adopt corresponding delegated acts within the timeframes set out in the PPWR. However, it should be expected that packaging must comply with design-for-recycling criteria from 1 January 2030 and with recyclable-at-scale criteria from 1 January 2035.

Both Parliament and Council also proposed to add certain indicative parameters to be considered when establishing the designed-for-recycling criteria. These include inter alia additives, labels and sleeves, adhesives, colors and ease of dismantling. It should be noted that the Council proposed to consider also the evolution of sorting and recycling technologies when assessing the designed-for-recycling criteria. Thereby it will be taken into consideration whether a certain currently unsortable packaging may be sortable in the future.

The Council further proposed to limit the performance grades for packaging recyclability to grades A, B and C. While this slightly reduces the recyclability requirements for grades B and C, it does not change the overall position that packaging with a recyclability of less than 70% will no longer be considered recyclable from 1 January 2030 and therefore may no longer be placed on the market.

Both Parliament and Council propose to exempt further packaging from the obligation that packaging shall be recyclable. The Parliament proposed exemptions for contact sensitive packaging for infant and baby food as well as wood and wax packaging, while the Council suggested to exempt, inter alia, sales packaging made from lightweight wood, cork, textile, rubber, ceramic or porcelain. While both the Commission's and the Parliament's drafts provide for a time limit for these exemptions, the Council proposed that the time limit for the exemptions be removed; instead, the Commission shall review the exemptions by 1 January 2035 and reassess the appropriateness of the continuation of the exemptions.

Percentages of recycled plastic content in packaging 

With regard to the minimum recycled content thresholds in plastic packaging, the Parliament proposed to lower the minimum requirement for contact sensitive packaging made from plastic materials other than PET from 10% to 7.5%. By 1 January 2040 the minimum recycled content requirement for such packaging shall be 25% instead of 50% as currently foreseen in the Commission’s draft.

The Parliament also proposed further exemptions from the minimum recycled content obligation. According to the Parliament, exemptions shall apply to contact sensitive packaging for food intended for infants and young children as well as minor plastic parts representing less than 5% of the total weight of the whole packaging unit. An exemption shall also be made where the recycled content poses a threat to human health and could conflict with the conformity requirements of the products. According to the Commission and the Council such an exemption due to risks for human health shall only be made subject to a delegated act to be adopted by the Commission.

Furthermore, the Parliament proposes an amendment that, inter alia, aims at enabling economic operators to meet up to 50% of the recycling targets by using bio-based plastic feedstock. However, this shall be subject to a prior assessment by the Commission to be published by 31 December 2025.

Compostability

While the Commission’s draft requires several types of packaging to be compostable, both the Parliament and the Council propose to further limit the compostability requirements. According to the Parliament, only those very lightweight plastic carrier bags that are required for loose food for hygiene reasons or that are provided as primary packaging for loose food helping to prevent food waste shall be compostable. According to the Council’s proposed amendments very lightweight plastic carrier shall only be compostable if a Member State requests so and only if an appropriate waste collection scheme and waste treatment infrastructure is available to ensure that such packaging actually enters the organic waste management stream.

Both the Parliament and the Council require the Commission to request the European standardization organizations to prepare or update standards laying down technical specifications of the requirements on compostable packaging. Such harmonized standards will give economic operators more certainty and ensure that compostable packaging is considered compostable in all Member States.

Furthermore, the Parliament wants to give economic operators more time to change their packaging to compostable packaging where required and proposes to implement this obligation only 36 months from the entry into force of the PPWR instead of 24 months as currently foreseen by the Commission and the Council.

Minimization of packaging

With respect to the minimization of packaging weight and volume economic operators shall be given more time according to the Parliament by applying this obligation only from 1 January 2030 instead of immediately after the entry into force of the PPWR as foreseen by the Commission and the Parliament.

The Council’s proposed amendments further provide for several exemptions from the prohibition to use packaging not necessary for compliance with the performance criteria set out in Annex IV and packaging with characteristics that are only aimed to increase the perceived volume of the product. According to the Council, this prohibition shall not apply to packaging designs that are protected by design rights and trademarks if these are protected by the entry into force of the PPWR and the packaging minimization obligation would impair the protected rights. The Parliament proposed to exempt at least packaging that is protected by a Community design from this prohibition.

Furthermore, both Parliament and Council propose to oblige the Commission to request the European standardization organization to provide harmonized standards on the calculation and measurement of compliance with the packaging minimization obligation. In addition, maximum adequate weights and volume limits as well as, if appropriate, wall thickness and maximum empty space shall be standardized for most common packaging types and formats. Such standards may also provide economic operators with more certainty regarding compliance with this obligation in the future.

With regard to the limitation of the empty space ratio foreseen in the Commission draft, Parliament refrains from setting a specific maximum empty space ratio. Instead, economic operators shall merely be obliged to minimize the empty space ratio in accordance with the packaging minimization criteria laid down in Part 1 of Annex IV.

By contrast, the Council proposes to increase the allowed empty space ratio from 40% as proposed by the Commission to 50%. Economic operators shall be given time to comply with this obligation until 1 January 2030, or 36 months after the entry into force of delegated acts to be adopted by the Commission establishing the methodology for the calculation of the empty space ratio.

Furthermore, according to the Council and the Parliament, economic operators using reusable packaging shall generally be exempted from the obligation to reduce empty packaging space.

Labelling requirements

With regard to the labelling requirements the Parliament proposes several transitional arrangements in favor of economic operators. According to the Parliament, inter alia, packaging that has been manufactured or imported before the entry into force of the labelling requirements laid down in Article 11 PPWR shall be allowed to be placed on the market even in case of non-compliance with the then applicable labelling requirements for an interim period.

According to the Council’s draft, packaging that is part of a deposit and return system shall not be subject to the obligation to contain a label on its material composition. However, it should be noted that such packaging will in any case have to bear a harmonized label with respect to the deposit and return system. Corresponding harmonized labels will be established by the Commission in an implementing act.

Reuse and refill targets

While the Commission's draft specifies rather vaguely that reusable packaging must be designed in such a way that it can be reused as many times as possible, both the Council and the Parliament intend to further specify this requirement. According to the Council, reusable packaging made of cardboard has to be reusable at least five times and packaging made of any other material at least ten times. According to the Parliament, the minimum number of rotations shall be established by the Commission in a delegated act to be adopted within two years after the entry into force of the PPWR.

With respect to the reuse targets laid down by the Commission in Article 26 PPWR, both the Parliament and the Council suggest several amendments. For example, according to the Parliament no reuse targets shall be established for packaging for take-away ready-prepared food. Instead, final distributors in the Hotel/Restaurant/Catering (“HORECA”) sector shall merely be obliged to offer consumers the option of take-away packaging within a system of reuse with respect to beverage packaging (Article 28b Parliament PPWR) and to provide consumers a system for refill (Article 28a Parliament PPWR). Both the Parliament and the Council also propose not to establish any reuse targets for sales packaging for wine. Interestingly, the Council also proposes to raise the 2040 reuse target for sales packaging for several alcoholic and non-alcoholic beverages from 25% to 40%. With respect to the 100% reusability target for transport packaging used by an economic operator delivering products to another economic operator within the same Member State, the Parliament proposes that this obligation shall apply only from 1 January 2030; with respect to transport packaging used for the transport between different sites of an economic operator the 100% target proposed by the Council and the Commission, shall be lowered to 95% according to the Parliament.

In addition, the Parliament proposes several exemptions from the reuse targets, including for economic operators having a small sales area of not more than 200sqm or where reuse does not provide for the best environmental outcome.

Furthermore, both the Parliament and the Council propose to oblige final distributors to take back reusable packaging formats issued by them.

List of banned Single-Use Packaging

Especially the Parliament proposes to exempt several types of packaging from the list of banned packaging formats in Annex V of the Commission’s draft. According to the Parliament single use packaging for fruits and vegetables, and for food and beverages consumed inside restaurants and cafes shall still be allowed. The Parliament also wants single use packaging used in the HORECA sector containing individual portions or servings, such as packaging used for sugar and seasoning or for ketchup and mayonnaise, to remain permitted.

Packaging Forum

The Parliament further proposed a new interesting initiative: An expert group consisting of representatives of Member States and all parties concerned with packaging, including waste treatment industry, manufacturers and packaging suppliers, distributors, environmental protection groups and consumer organizations, shall be set up. Those parties shall be consulted with respect to the preparation of the delegated and implementing acts and for assessing the effectiveness of the established market surveillance mechanisms giving companies a chance to influence upcoming measures (Article 12a Parliament PPWR).

Exemptions for micro-enterprises 

According to the Parliament, the existing exemptions for micro-enterprises shall be further extended. While the drafts of the Council and the Commission provide for exemptions for micro-enterprises merely with respect to the reusability target obligations, the Parliament proposes to exempt micro-enterprises also from the minimum percentage of recycled content obligation (Article 7 para. 2a Parliament PPWR) and from the packaging minimization obligation (Article 9 para. 2a Parliament PPWR).

Sanctions

The Parliament’s draft further details potential sanctions. According to the Parliament, penalties may include fines proportionate to the environmental damage and the value of the relevant products, confiscation of revenues gained by the economic operator, temporary exclusion from public procurement up to a temporary prohibition from placing or making available on the market relevant products.

Moreover, the Parliament proposes to entitle natural and legal persons affected or likely to be affected by a breach of the PPWR as well as persons having a sufficient interest in environmental decision-making to request authorities to take action with respect to breaches of the PPWR (Article 62b Parliament PPWR). Authorities shall be obliged to inform the persons that submitted such a request of their decision to accede or refuse the request to take action against an economic operator. This provision could significantly increase the risk of prosecution of breaches of the PPWR.

Next steps

In the coming weeks, the Parliament and the Council will try to reach an agreement on the PPWR in the so called ‘trialogue’ where the Commission will serve as a mediator. Belgium, which currently holds the Presidency of the Council, aims at having a final text approved by the end of February. After having reached an agreement on a final text for the PPWR, both the Parliament and the council will have to formally agree on the text. If the Council and the Parliament are successful in reaching an agreement within the timeframe envisaged by Belgium, it is likely that the PPWR will enter into force in the first half of 2024. Depending on the outcome of the negotiations between the Parliament and the Council, many provisions of the PPWR will then be applicable one or one and a half year after its entry into force. Given that it can thus be expected that new mandatory regulations on packaging and packaging waste will soon apply, it is highly recommendable that businesses start familiarizing with the envisaged regulations. In order to avoid additional costs, new packaging should already be aligned with the foreseeable requirements under the PPWR where appropriate. We would be happy to support you in better understanding your future obligations under the envisaged PPWR.

Authored by Dr. Christiane Alpers and Dr. Hanns-Thilo von Spankeren.

The authors would like to thank legal research assistant Louisa Huske for her active and valuable contribution to this article.