After the Cologne Administrative Court had already dismissed the complaint of a company from the food retail sector against a classification notice from the Central Agency Packaging Register (ZSVR), further complaints have now been dismissed by the Osnabrück Administrative Court. The plaintiffs had objected to the system participation obligation of their packaging.
The Cologne Administrative Court had confirmed this in the first instance, that permanent carrier bags are packaging subject to system participation. The judgement has enormous implications for companies in almost all sectors, including drugstores, DIY stores, garden centres, furniture stores, pet supplies and toys. This is because it means that anyone who offers their customers permanent carrier bags is, subject to final clarification by the Federal Administrative Court obliged to finance the recycling of this packaging. The court has authorised the appeal on points of law, the appeal proceedings are already pending. This means that the judgement of the court of first instance will now be reviewed directly in the last instance before the Federal Administrative Court.
Precedents with a signalling effect
The Osnabrück Administrative Court has now dismissed several appeals against categorisation decisions by the ZSVR. The plaintiffs had objected to the system participation requirement for their packaging for food and construction chemicals products as well as two articles of daily use. At first instance the court has now confirmed the classification of the ZSVR on the basis of the typifying overall market view of the catalogue.
It was about a 9 kg bucket of salad mayonnaise and various containers for paints, varnishes and thinners, such as buckets and cans. The ZSVR had classified the bucket for salad mayonnaise as subject to system participation and categorised the packaging for construction chemicals as either subject to system participation or not subject to system participation, depending on the fill size. In both cases, the companies took legal action against the categorisation of their packaging. There is no doubt that the buckets and cans of both product groups are sales packaging. What needed to be clarified was whether this packaging was „typically“, according to the wording in the Packaging Act, i.e. the majority, accumulate as waste at the private end user and therefore the recycling of this packaging must be financed.
The ZSVR decides on the system participation obligation for packaging on the basis of its catalogue packaging subject to system participation. This is a Administrative regulation based on a standardised overall market analysis. This determines whether packaging typically accumulates as waste with the private final consumer after use. It is important to note that it is not a single piece of packaging from a particular company that is assessed, but all comparable packaging throughout Germany, for example, on all 9 kg buckets of salad mayonnaise. The Osnabrück Administrative Court has now confirmed that the standardised approach based on objective assessment criteria is appropriate. However, it clearly rejected the manufacturer-related individualised approach.
Dismissals strengthen the categorisation of the ZSVR
The dismissal of the action and the confirmation of the catalogue by the court of first instance make it clear: when classifying packaging with regard to its system participation obligation does not depend on the distribution channel of a single manufacturer. The only decisive factor is the overall market analysis. In two further proceedings, the Osnabrück Administrative Court also followed the categorisation decisions issued by the ZSVR and thus underpins the official decision-making practice of the ZSVR and the Federal Environment Agency as the appeal authority. In these cases, the question was clarified as to whether spectacle cases and dummy boxes are packaging at all, which was confirmed by the courts. As a result, they are clearly packaging with a system participation obligation, as they typically accumulate as waste with private end consumers.
Classify packaging correctly and ensure compliance
The judgements are not yet legally binding. The proceedings are expected to continue before the Lüneburg Higher Administrative Court as the court of appeal. Nevertheless, the ZSVR strongly recommends that companies apply the catalogue of packaging subject to system participation. The obligation to participate in the system exists independently of the categorisation decisions the ZSVR and remains the responsibility of the companies themselves - also in ongoing proceedings.
Companies that are required to submit a declaration of completeness must explicitly state any deviations from the catalogue in the audit report and quantify them. If companies or auditors deviate from this, you do this at your own risk. An approach that significantly increases the compliance risk in light of current case law. The current rulings confirm the validity and reliability of the catalogue's typifying overall market view. Those who apply this ensure compliance for their company and ensures fair competitive conditions. Even those in denial should act now at the latest. The Catalogue can be used by everyone as a database on the ZSVR website.
Source: ZSVR
