Threat to packaging law

Date: 21/12/1995

By Michael Mann

THE German government is facing a potential court challenge from the European Commission over the legality of its controversial packaging laws.

Internal Market Commissioner Mario Monti has written to Bonn Environment Minister Angela Merkel suggesting that German laws may constitute an illegal barrier to trade within the single market.

In an eight-page letter, Monti expresses particular concern at the clear preference given in Germany's 1991 Packaging Ordinance for materials which can be used again without recycling, such as glass, rather than so-called “one-way packaging”. He also casts doubt over the environmental justification for the German system.

Under the Commission's infringement procedures, Bonn now has two months to prepare its defence.

If the Commission remains unconvinced by the German government's arguments, it will issue a “reasoned opinion”, which would either force Germany to amend its controversial law or see it dragged before the European Court of Justice.

The question is further complicated by indications of disagreements between Directorate-General XV, responsible for the internal market and DGXI, responsible for environmental policy.

Lobbies representing manufacturers of “one-way” packaging, such as cartons and cans, believe that this may represent the last opportunity to force changes in Germany under single market procedures before responsibility for the dossier passes to DGXI when the EU's Packaging Directive comes into force in June next year.

DGXI is likely to adopt a softer approach because of its overriding concern to protect the environment, while DGXV is mainly concerned with the impact of national laws on the cross-border movement of goods.

Monti's main bone of contention is the requirement under the German ordinance for the payment of a deposit on one-way packages. A waiver may be granted in certain circumstances, but only through membership of the “Duales System Deutschland” and only if it can be proven that, in a given region, at least 72&percent; of packaging material for most products is reusable.

This, it is argued, clearly discriminates against the large volumes of goods in one-way packages imported into Germany from other member states.

Opponents of the system also claim there is no absolute proof to support Germany's argument that reusable packaging is necessarily the most environmentally-friendly way of transporting products. They say that the environmental and economic costs of transporting lorry-loads of heavy packaging such as glass cannot be justified.

“There is no clear proof of the relative environmental gains to be had from using one sort of packaging over another. There is not one single winner in this argument,” said one industry expert.

Monti's letter demands that Bonn proves there is genuine environmental justification for its regulations.

He also suggests that German regulations setting down specified quantities of packaging which must be recycled, as laid down in the ordinance, are not matched by recycling capacity within Germany.

This means that the surplus has to be recycled elsewhere, shifting the problem into neighbouring member states.

Bob Schmitz, of Beverage Can Makers Europe (BCME), expressed satisfaction that the Commission had finally decided to take action, but cautioned that it might merely be undertaking “a pro forma exercise to keep the critics happy”.

Determined to ensure decisive action in what it regards as a test case “to introduce more flexible packaging policy measures both in Germany and in a number of other EU countries”, BCME fears that Bonn will seek a kind of 'gentleman's agreement' with the Commission, pledging to set individual quotas for the amount of reusable packaging on a product-by-product basis.

Initial reactions from Merkel suggest she will recommend a series of life-cycle analyses to attempt to prove the superiority of refillable packaging for a range of products. German officials were unable to comment on how they would proceed.

“Much depends on how the retail trade will react,” says Schmitz.

In the past, there have been suggestions of what one lobbyist called “anti-competitive practices between industry and retailers to protect refillables”.

Complaints about the German law began as far back as 1991, although the Commission was nervous about proceeding with legal action because of the precedent set by the European Court of Justice's 1988 ruling on the “Danish bottle case”.

This was interpreted as saying that in the absence of EU secondary legislation, member states have the right to protect their national environment, so long as restraints on trade are not disproportionate to the environmental aims.