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Joint industry statement to safeguard Internal Market legal basis

Policy papers 17 Apr 2023

In recent years, the packaging value chain has been under pressure by divergent national packaging requirements, resulting in internal market barriers, environmental trade-offs, losses in economies of scale, diversion of investments and R&D. The internal market legal basis of packaging legislation has successfully addressed these differences between EU Member States regarding their management of packaging and packaging waste, while contributing to the European Union’s ambitions for a circular economy. Any potential erosion or split of the Regulation’s internal market legal basis will further exacerbate the current pressures, create legal uncertainty and undermine the free movement of packaged goods.

The undersigned industry associations express their strong support for the European Union’s ambitions for a circular economy. The EU Commission proposal to transform Directive 94/62/EC on Packaging and Packaging Waste (PPWD) into a Regulation and the choice to maintain an internal market legal basis (Article 114 TFEU) is a step to achieve that.

While this is a welcome step forward, we are writing to express our concern about the potential erosion or split of the Regulation’s legal basis as part of the co-decision process.

Circular economy solutions require the scale for investment and their roll-out, so that the transition is cost-effective and fast to serve the society best. A robust EU single market is key to achieving the free movement of packaging materials and packaged goods. Packaging is an essential part of a product supply chain, from the production to the consumption stage, and the packaging value chain plays a central role in contributing to a resource-efficient and circular economy. For instance, by optimising resource use, minimising product and food waste and by protecting products all along the value chain.

Additionally, ensuring that packaging waste is duly collected and makes its way into recycling allows valuable raw materials to come back in the value chain and be used across the Single Market. A strengthened market for secondary materials and a strong and resilient EU single market represent fundamental enablers of circularity, which will create greater economies of scale and underpin the investment needed to realise a circular and climate-neutral economy in Europe. Its continued functioning remains crucial to Europe’s global competitiveness and green transition.

The introduction of the internal market legal basis in the 1994 PPWD was intended to address differences among the various national rules on the management of packaging and packaging waste and consequent internal market barriers, while providing a high level of environmental protection. In recent years however, the packaging value chain has witnessed an increase of unilateral and divergent national packaging requirements (e.g., packaging bans, reuse and recycled content targets, labelling requirements). These have led to internal market barriers, environmental trade-offs, losses in economies of scale, and diversion of investments and R&D. More recently, several EU Member States have also adopted national legislation on packaging and packaging waste, pre-empting the adoption of EU-wide sectoral legislation irrespective of Article 6 (3) of Directive (EU) 2015/1535 on Technical Regulations Information Systems (TRIS).

Finally, several of the provisions included in the PPWR proposal already allow Member States to maintain or introduce additional national sustainability and information requirements. Should those

1. The need for an Article 114 TFEU legal basis was highlighted by the Commission within the 1992 proposal for the current Directive, when there was an explicit acknowledgement of the necessity to address the divergent Member state measures that were hindering the free movement of packaged goods and distorting the internal market. The appropriate legal basis was therefore identified as Article 100 (now Article 114 TFEU).

2. As an example, the impact assessment accompanying the EU Commission proposal for a Packaging and Packaging Waste Regulation identifies inconsistent and confusing labelling as a barrier to packaging circularity and provides a number of case studies regarding environmental trade-offs and compliance costs deriving from diverging marking requirements. See here.

3. Article 6 (3) of the TRIS Regulation prescribes that “With the exclusion of draft rules relating to services, Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication referred to in Article 5(1) of this Directive, if, within three months of that date, the Commission announces its intention to propose or adopt a directive, regulation or decision on the matter in accordance with Article 288 TFEU.”

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