Packaging Law Europe

Bailey Patricia M.

• Publisher: Routledge
• Year: 2019
• Print ISBN:
  9781138332645
• eBook ISBN:
  9780429821714
• Topic: Law
• Subtopic: International Law
• Index: Law

First published in 1999, this volume responds to the 1991 enactment by the German government of its Packaging Ordinance, which led to new or revised packaging legislation throughout the European Union. Problems caused by this divergent legislation led to the enactment of the Directive on Packaging and Packaging Waste in late 1994. Unfortunately, the imprecision of the Directive necessary to ensure its enactment has led to further disputes. At the heart of these disputes is the classic struggle between the priorities of environmental protection and economic development. This book analyses the implementation of the Directive by Member States, and in particular, issues such as the imposition of quotas on reusable containers; the use of economic instruments and environmental agreements; and competition issues and state aids. The book enlightens readers to the current debates regarding packaging legislation which continue today, despite the enactment of EU legislation.

1 Environmental Legislation and Policy Regarding Packaging Waste at the European Community Level

An overview of environmental legislation and policy

Before considering the policy and legislation of the European Community on packaging waste, it is necessary to consider the evolution of European environmental policy and legislation as a whole. The Community’s interest in environmental legislation can be traced back to 1972, the year of the United Nations Conference on the Human Environment; however, difficulties arose because the 1958 Treaty of Rome¹ (the ‘Treaty’) provides no clear basis for environmental protection. Instead, the Community began using Articles 100 and 235 (regarding the internal market) to legislate aspects of the environment which could arguably affect the free movement of goods or distort competition.

Such was the situation until 1987, when the Single European Act² (‘SEA’) amended the Treaty to add Articles 130r-130t. Article 130r formalised the adoption of both the ‘precautionary principle’ and the ‘polluter-pays principle’, which were already being applied in some Member States. Article 130r further states that environmental issues must become a standard part of other EC policies, including subsidiarity. Article 130s provides for the implementation of the policies outlined in Article 13Or, in consultation with the European Parliament, but also provides for a unanimous vote in fiscal matters, matters of land use and measures significantly affecting the energy supply of a Member State. Article 130t notes that even when a measure is adopted pursuant to Article 130s, it shall not prevent a Member State from maintaining or introducing more stringent measures. Yet, despite the adoption of these articles, they were soon recognised as insufficient for the needs of the Community (Hooghe, 1993).

Accordingly, the Treaty on European Union³ (the ‘Maastricht Treaty’) revised Articles 2 and 3 such that the environment is today given a status equal to that of economic concerns. Article 2 states that the Community is to pursue ‘sustainable and non-inflationary growth, giving due consideration to the environment’, while Article 3(k) empowers the Community to develop ‘a policy in the sphere of the environment’. The addition of environmental issues to these first articles of the Treaty is more significant than the addition of Articles 130r-130t because these first articles address the basic functions of the Community. However, it is unclear whether the articles as revised will actually have a greater effect on the environment. Further, the Maastricht Treaty is based on the assumption that the single internal market has been fully achieved, a premise which is still open to debate.

In addition to Articles 130r-t, the SEA had added Article 100a, which permits the adoption of a measure by qualified majority of the Council, following deliberation with the European Parliament. Article 100a is an internal market provision, drafted to facilitate the passage of measures to ensure the smooth functioning of the internal market. Thus, by basing the Directive on Packaging and Packaging Waste⁴ (the ‘Directive’) on Article 100a as opposed to Article 130s, the Community was declaring that the primary purpose of the Directive was to harmonise to the extent possible, the existing packaging legislation of the Member States (Reid, 1995).

During the discussions of proposed Community legislation, some Member States will view a proposed measure as being too harsh, while other Member States will view it as too weak. The end result is that the Commission will suggest a measure which is acceptable to the majority of Member States. In the field of the environment, the final legislation will rarely present the highest level of protection, but instead will reflect the current environmental and economic situation in the majority of Member States. It can be argued that the Commission must not propose a level of protection so lax that those Member States with existing legislation which imposes a higher level of protection will cause distortions in the internal market, post-enactment (de Sadeleer, 1995a). Indeed, this argument supports the German position regarding the Directive: prior to its enactment, Germany had existing legislation which provided a higher level of environmental protection and thus, Germany should be able to maintain that level, post-Directive. Yet, one of the primary reasons for the Directive (and why it was based on Article 100a and not Articles 130r-t) is that prior to the enactment of the Directive, national packaging treatment programmes, such as Germany’s Duales System Deutschland (‘DSD’) were creating distortions in the internal market, such that an EC-wide directive became necessary.

Within Article 100a, paragraph 4 has become quite important, given that the opt-out provision of this paragraph indicates that Member States may apply national provisions in conflict with a directive, on the basis of the environment. However, the Member State must notify the Commission, which shall then confirm that the measure is not actually a form of arbitrary discrimination or a disguised restriction on trade. Thus, a Member State could actually have legislation more strict than the Directive. However, the amount of leeway granted is quite small and the restriction must meet the above criteria (de Sadeleer, 1995a).

The principle of subsidiarity

Another issue raised by the Maastricht Treaty is that of subsidiarity: the Community should take action ‘only if and insofar as the objective of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of effects of proposed action, be better achieved by the European Community’ (Article 3b). Thus, this principle restricts the power of the EC institutions to act in the environmental sphere when the Member States have sufficient competence. Yet, an alternative reading of this clause is that when an activity, due to the scale of its effects, cannot be sufficiently achieved by the Member States, it should be conducted by the Community. And in fact, the idea of ‘reverse subsidiarity’ was applied to the Community’s packaging waste situation: the effects of national packaging waste programmes were sufficiently (and increasingly) European in scope such that it became necessary for the Community to step in, in order to secure the harmonisation of the internal market. More recently, the proposed 1997 Treaty of Amsterdam⁵ would introduce a new restriction on the Community by which actions taken by the Community would not exceed that which is necessary to attain the objectives of the Treaty.

Article 171

The Maastricht Treaty contained a third element which can affect the environment: Article 171 was amended to include a provision for sanctions. Previously, the European Court of Justice (‘ECJ’) had no power to enforce its decisions, relying solely on the goodwill of the Member States. While this goodwill may have worked in some cases, certain Member States received several judgments against them for the same violation, but continually failed to comply. The ECJ can now impose penalties against a Member State for failing to implement its ruling. While this power will probably improve some Member States’ compliance with the Directive, it will not make a difference for others. While the less-developed Member States have transposed most of the Directive and have established national waste programmes, several do not have the funding or technical training necessary to ensure compliance with many of the provisions of the Directive. Yet, to sanction these Member States or to reduce the funding they receive from the Community, will only set back their environmental progress further.

The current Fifth Environmental Action Programme⁶ diverges greatly from previous programmes in that in lieu of merely encouraging the protection of the environment, it approaches the problem as one of sustainable development. The Programme reverses its former perspective of a top-down approach and instead advocates the participation of those closer to the activities: the consumers, businesses and trade unions. As discussed in Chapter 3, the Netherlands and France were the first Member States to proactively include industry in the drafting of packaging legislation. In Europe, the approach to packaging materials legislation has been largely initiated by industry, or by government with industry as a partner to share the responsibility. This approach has emphasised reduction of the packaging before use, as opposed to other post-usage treatment such as recycling, reuse, incineration or landfill (OECD 1995), and is in line with the Community’s policy of ‘prevention’ as the primary method of reducing packaging waste.

Community policy regarding packaging waste

The situation prior to the enactment of the Directive

The history of the Community’s packaging waste policy is marked by three significant events.

The first event was precipitated by Denmark in 1981, when it passed legislation which banned all metal drink cans and required all beer and nonalcoholic drinks to be packaged under a deposit bottle system. In the resulting case, commonly known as ‘Danish Bottles’,⁷ the European Court of Justice (‘ECJ’) determined that the restrictions placed by Denmark did not constitute a distortion of free trade and were appropriate and proportionate with regard to the environmental objectives. However, the ECJ did not approve of the Danish legislation’s requirement that all drinks be sold in approved containers. While the Danish Bottles case has often since been cited as authority that Member States can place restrictions on the free movement of goods, in the name of an exemption for the environment, how far this exemption can be taken is another matter. Further, one must remember that the ECJ made its ruling in the absence of Community legislation on the matter; it is not clear that such restrictions would be upheld today.

The second significant event was the enactment of the forerunner to the Directive, the 1985 Directive on packaging for liquid foodstuffs⁸ (the ‘Liquid Foodstuffs Directive’). The need for this directive was due to the increase in packaging waste from liquids, as the result of the development of containers which made beverages more portable (and the proliferation of liquid container waste more visible). The Liquid Foodstuffs Directive focused on all containers (from manufacture to disposal) of liquid foodstuffs; Member States were required to set up programmes to reduce the weight and the volume of liquid container waste. The Liquid Foodstuffs Directive was not strongly supported by the Member States: by 1990, five of them had still not notified the Commission of their programmes. As the Liquid Foodstuffs Directive was implemented in a variable fashion from Member State to Member State, it ultimately began to create problems for the free movement of goods within the Community (Demey et al., 1996).

The third significant packaging event occurred in 1991, when the German government enacted the Verordnung über die Vermeidung von Verpackgungsabfallen (Ordinance on the Avoidance of Packaging Waste). This Ordinance affected all types of packaging materials and quickly set off a storm of controversy, both within and outside Germany. Debates soon began in other Member States regarding the enactment of their own packaging waste legislation. In some Member States (notably France and the Netherlands), legislation was enacted not long thereafter, and was the result of industry co-operating with government, in order to ward off strict legislation similar to that of Germany.

By 1993, problems created by the Member States’ legislation had made it clear that intervention at the EC level was necessary, in order to remove barriers to trade and to prevent distortion of competition. However, strong differences of opinion existed as to what legislation was needed. Part of the problem was caused by the range of interests involved, such as packaging manufacturers, product manufacturers, retailers, consumers, and environmental interest groups (Long et al., 1997). In addition, there were differing national attitudes regarding the extent and gravity of the problem and how it should be addressed.

In drafting the packaging waste directive, the Commission encountered unprecedented conflicts, some of which were due to the disparate (and disputed) levels of waste generated by the Member States. As the following table makes clear, at the time of the enactment of the Directive, some Member States had more of a problem than others.

Table 1.1

Generation of municipal waste: kilograms per inhabitant per year (Non-EC countries have been included for comparative purposes)

One must be careful however, not to make snap judgments from the above figures. While it appears that the wealthier countries overall tend to generate the most waste, Germany has one of the lowest rates, which one could attribute to their strong environmental awareness and the fact that DSD has been in effect for several years. On the other hand, Denmark and the Netherlands have rather high rates when one considers their strong recycling efforts. In fact, their rates are much higher than those of France or Spain, which are not known for their environmental awareness or recycling efforts. Even in Scandinavia, the rates are as low as 370 kg for Sweden and as high as 620 kg for neighbouring Finland. Moreover, a 1998 study by PriceWaterhouseCoopers revealed completely different statistics on waste generated by the same Member State, depending upon whether the source was the Member State’s environmental ministry, the OECD, or Eurostat (Price, 1998). This finding underscores the need for the data collection provisions contained in the Directive.

Overall, one can conclude that the amount of waste generated depends not only on the Member State’s relative wealth, but also on its production, distribution and consumption patterns, and recovery efforts. These disparate figures also suggest why the Directive had to be drafted in rather broad terms: it must allow flexibility for the varying needs of the Member States.

The enactment of the Directive

The enactment of environmental legislation

Although environmental legislation is of course, enacted in a fashion similar to that of other Community legislation, a few aspects are different. Proposals for legislation are made by the Commissioner in charge of the environment, following collaboration with the Commission, which is the only institution with the power to initiate new legislation. After the Commission makes a formal proposal, it must be approved by all of the Commissioners at their weekly meeting. The proposal is then transferred to the Committee of Permanent Representatives (‘COREPER’) for its review. Via this review (which is not open to the public) the Member States make actions to block or approve proposals (Hooghe, 1993).

Proposals regarding the environment are distinguishable in that they must be approved by the Environmental Council, which only meets twice per year. Thus, the legislative process is further retarded. Moreover, pursuant to Article 189b of the Treaty, proposals are subject to the co-decision procedure with the European Parliament. Most legislation provides fo...

Table of contents

• Cover
• Half Title
• Dedication Page
• Title Page
• Copyright Page
• Table of Contents
• Tables
• Acknowledgements
• Preface
• Introduction
• 1 Environmental Legislation and Policy Regarding Packaging Waste at the European Community Level
• 2 The Packaging Waste Directive
• 3 Packaging Legislation of the Member States
• 4 The Debate Regarding Constraints on Certain Types of Packaging
• 5 The Use of Economic Instruments and Environmental Agreements to Implement the Directive
• 6 Packaging Legislation and Competition Policy
• Conclusions
• Appendix A - The Packaging Waste Directive
• Appendix B - Relevant Legislation
• Appendix C - Relevant Commission Decisions
• Bibliography