German Packaging Act violation – fashion boutiques under scrutiny by the Packaging Register

Sales packaging, repackaging and dispatch packaging of textiles, shoes, leather goods such as (Women’s) outer wear and accessories such as gloves, bags and fashion jewellery are mainly purchased by private consumers. Accordingly, they are generally obliged to participate in the system provided under the Packaging Act. Several fashion boutiques of a foreign fashion brand which are affiliated under company law with their own direct sales (online shops) and are based in Germany have not fulfilled their product responsibility for packaging and have violated their obligations under packaging law for years now. The German Foundation Central Agency Packaging Register (ZSVR) has notified the competent state enforcement authorities that there are concrete indications of regulatory offences having been committed. Possible consequence of such administrative offences include the imposition of fines, profit skimming, as well as monitoring the obligation to participate in the system retroactively for past periods.

Sales, repackaging and dispatch packaging of textiles, shoes, leather goods such as (women’s) outer wear and accessories such as gloves, bags and fashion jewellery are predominantly bought purchased by private consumers. Accordingly, they are generally obliged to participate in the system provided under the Packaging Act.

Several fashion boutiques of a foreign fashion brand which are affiliated under company law with their own direct sales (online shops) and are based in Germany have not fulfilled their product responsibility for packaging and have violated their obligations under packaging law for years now. The domestic fashion boutiques are manufacturers of packaging that is subject to mandatory system participation. In particular, they import packaged goods and thus become manufacturers within the meaning of the Packaging Act with regard to sales packaging. In addition, they fill their packaging items with goods and place them on the market. The boutiques in question thus are manufacturers/first distributors under the Packaging Act for the relevant sales, repackaging and packaging for shipment. Service packaging such as paper bags, which support the transfer of goods to the consumer, is also included in sales packaging that falls under system participation. By failing to participate in the system, the manufacturers in question have gained unjustified competitive advantages over competitors who have behaved in conformity with the law.

The fashion boutiques registered as manufacturers within the meaning of the Packaging Act in the LUCID packaging register only after the German Foundation Central Agency Packaging Register (ZSVR) drew their attention to their unlawful omission. The obligation to sign up in the LUCID packaging register has been in force since 1 January 2019. Failure to register may be punished with a fine of up to 100,000 euros for each offence.

Moreover, for years the fashion boutiques did not participate in any system for their packaging requiring system participation. They have therefore unlawfully failed to comply with their product responsibility. Mandatory system participation has existed for many years now: Before 2019 according to the Packaging Ordinance, and since 2019 pursuant to the Packaging Act. There are concrete indications of administrative offences having been committed. These can be punished for each offence with a fine of up to 100,000 euros under the Packaging Ordinance or 200,000 euros under the Packaging Act.

The ZSVR has notified the competent state enforcement authorities that there are concrete indications of regulatory offences having been committed. Possible consequences of such administrative offences include the imposition of fines including profit skimming as well as the monitoring of mandatory system participation for past periods.

If you have any questions on the Packaging Act as well as mandatory system participation, please do not hesitate to contact the take-e-way GmbH consultants by calling +49/40/750687-0 or sending an e-mail message to beratung@take-e-way.de.

The full report can be downloaded from the website of the ZSVR: https://www.verpackungsregister.org/fileadmin/Fallberichte/Fallbericht_04-2020_Modeboutiquen_veroeffentlicht_am_30.10.2020.pdf

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