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Legal assessment on the EU packaging regulation PPWR: Special rules for plastic packaging not compatible with EU law

A legal assessment published today shows that the special rules for plastic packaging and exemptions for other packaging materials discussed as part of the planned EU Packaging Regulation (PPWR) are very likely not compatible with EU law. According to the report, provisions that, for example, only prohibit plastic packaging require it to be reused or exempt coated paper packaging from the recycled content quotes, very likely violate the principle of equal treatment because there are no objective reasons for such unequal treatment. The legal experts also criticise procedural infringements because the Parliament and Council have not taken all relevant factors into account in their proposals. In a joint appeal, the associations EuPC, IK and Elipso, which commissioned the legal assessment, call on the Member States and the European Parliament to remove the material-specific special rules in the ongoing trilogue negotiations in order to create legal and planning certainty for companies.

The assessment by the international law firm Dentons concludes that all of the special rules for plastic packaging and exemptions for other materials analysed most likely violate the EU principle of equal treatment because with a high probability they discriminate against plastic packaging. Such discrimination is counterproductive to the objectives of the PPWR because it is very likely to lead to environmental problems by replacing light and easily recyclable plastic packaging with heavier and less recyclable packaging materials, causing an increase in the amount of packaging waste and greenhouse gas emissions.

"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," criticises Bernard Merkx, Director General of EuPC. "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," says Merkx.

The report shows, among other things, that the bans on plastic film for a 6-pack of bottles or plastic packaging for unprocessed fruit and vegetables are not compatible with EU law. "The bans only on plastic packaging contradict the original objectives of the PPWR and the environmental principles of the EU. They would merely lead to a switch to single-use packaging made from other materials, e.g. paper and cardboard packaging, which is often less sustainable," criticises Gaël Bouquet, Director General of the French plastics packaging association Elipso. Furthermore, the legislator has not considered any less burdensome measures.

"It's still not too late. 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," demands Dr Martin Engelmann, Managing Director of the German IK Industrievereinigung Kunststoffverpackungen. "This is the only way to create the legal and planning certainty that companies need for the transformation to a circular economy," says Engelmann.

Plastic packaging manufacturers have long called for a return to EU-wide harmonised applied packaging rules. ​ However, the legal fragility of the text, as currently proposed, will very likely lead to an avalanche of European or national legal disputes and, as a result, to instability of the framework and the undermining of the circular economy for packaging that it aims to establish. This is why the three associations are calling on the European legislator to guarantee the legal certainty of this text.

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