Packaging directive coming undone

Date: 18/09/1997

By Michael Mann

IT IS a perverse feature of late twentieth century society that more lobbying effort has gone into the EU's legislation on packaging than any of the laws affecting the myriad of products encased in such packing.

Three years after European governments and MEPs finally agreed the controversial Packaging and Packaging Waste Directive, industry groups are making just as much noise as they did back in 1994.

It only takes a quick glance at the sums of money involved in the sector to understand why. A survey quoted by the Alliance for Beverage Cartons and the Environment (ACE ) claims that 63&percent; of intra-EU trade worth 850 billion ecu is affected by the legislation - no less than 535 billion ecu of annual business.

Industry is convinced that the next few months will be absolutely crucial to the success or failure of a piece of legislation most claim was seriously flawed from the moment of its long and painful delivery.

“During conception there was at least one miscarriage. It had a rather difficult birth and has been struggling throughout its infancy. I have serious doubts it will reach adulthood,” says Julian Carroll of Europen (the European Organisation for Packaging and the Environment).

It is Germany which holds the key to the future of a controversial piece of legislation which was designed to fulfil the joint purpose of plugging a hole in the internal market while protecting Europe's environment from the threat posed by growing piles of packaging waste from a burgeoning consumer society.

For the best part of two years, the European Commission has been threatening Bonn with legal action unless it modifies its domestic packaging legislation, which is seen by a number of other countries as a shameless piece of protectionism.

A decision on whether to go ahead with court action could be taken at a 9 October meeting of the Commissioners' advisers charged with deciding which cases of alleged infringements of EU law should be taken to the European Court of Justice.

Since beginning the legal process, the Commission has looked for ways out of an embarrassing conflict with the Union's economic powerhouse.

This is leading some to worry that it is neglecting its role as the EU's environmental and single market police officer, and endangering the very survival of the single market with a law which was designed to allow the free flow of goods across borders.

“We are very concerned that the Commission is showing hints of weakness,” says Carroll. Those feelings are echoed by ACE director-general Lyn Trytsman-Gray, who warns: “Things are fine so long as the Commission acts as a strong referee, but it is not doing that at the moment.”

The crux of the problem is that 72&percent; of all sales of certain types of drink in Germany must be in refillable packaging such as glass bottles. This, argue critics, mitigates strongly against imported drinks such as mineral waters which are generally sold in lighter one-way containers.

The Commission has not been alone in seeing the negative side of Germany's legislation. Five other countries sent in formal complaints that their products were being discriminated against, with France pointing to German supermarket chains which had taken French mineral waters off their lists. Some shops even stopped selling Pepsi-Cola in plastic bottles.

John Robinson, who acts as EU adviser to the food and packaging industry, puts the situation in stark terms. “In Germany, obsessive environmental self-righteousness aided by a heavy dose of regulatory imperialism leads in the end to economic protectionism,” he claims. He believes that if Germany were really so worried about its 'green' credentials, it would think twice about continuing heavy subsidisation of the lignite coal industry.

But Germany is not alone in attracting the wrath of its EU neighbours for measures ostensibly designed to protect the environment, but which look suspiciously like protection for domestic products.

Denmark has come under the Commission's spotlight for its infamous 'can ban', under which beer may not be sold on Danish soil in aluminium cans. The ensuing controversy has proved to be a considerable embarrassment for Danish Environment Commissioner Ritt Bjerregaard.

According to Jacques Fonteyne, managing director of ERRA (the European Recovery and Recycling Association), there have been 22 formal complaints from EU governments and a further seven from the Commission over national measures designed to implement the packaging directive.

Only six member states (Belgium, Denmark, Ireland, Spain, Italy and the UK) have completed steps for national implementation, more than a year after the directive should have been in place across the EU.

But this snail-like pace is the least of the concerns facing industry lobbies. Far more worrying is the fact that national legislation is placing a heavy burden on manufacturers to meet higher recycling rates than are strictly required under the EU framework.

Fears are also being raised - and arguably confirmed by the German case - that environmental mania is causing people to lose sight of the directive's original goal to ensure the free movement of products around the Union.

Fonteyne also claims the rules place an excessive burden on consumer packaging, and do not deal sufficiently with bulk packaging used in all kinds of trade.

This could have a disproportionate effect on consumers, he claims, pointing to a 100&percent; increase in waste management costs in Germany between 1991 and 1996, compared with a cost of living increase of just 14&percent;. Fonteyne puts this down to the expenses associated with 'Duales System Deutschland', the firm charged with running the country's waste management system.

Meanwhile, other potential obstacles stand in the way of food and drink manufacturers and producers of packaging materials as policy-makers try to fill the gaps in existing legislation and interpret what is already in place.

Industry insists it is wrong to stick to a strict hierarchy of waste disposal methods, which always favours reuse over recycling. “People shouldn't assume that plastic is necessarily bad. It can have advantages in certain circumstances,” said an industry insider.

There are also concerns about moves to set EU standards for packaging, which could exclude entire types of wrapping from the market on dubious grounds.

Questions are being raised about the accuracy of so-called 'life-cycle analyses' on which decisions about packaging suitability are based.

Above all, the powerful lobbies representing some of the biggest names in world food manufacturing feel the entire approach of the directive was wrong from the outset, and that the Commission's decision to pick on one specific sector should serve as a warning to other industries. “The basic flaw is that the directive focuses on packaging rather than waste overall. The best way would be through an integrated approach rather than cherry-picking packaging,” insists Carroll.

Fonteyne claims EU legislation should set framework objectives rather than hard and fast rules, which have “restricted the ability of industry to innovate”.

In the absence of an integrated approach, civil servants will continue to concern themselves with such testing conundrums as whether or not iced-lolly sticks and cardboard toilet-roll holders constitute packaging under the terms of the 1994 law.