Consequently, some retailers (e.g., DIY stores) require suppliers of own-brand products and products from abroad to enter into third-party licensing agreements. These agreements relate solely to fulfilling the obligations under Section 7 of the Packaging Law Implementation Act (VerpackDG), i.e. participating in one or more dual systems for packaging subject to the system participation requirement. However, the agreement does not cover the obligations under Section 6 of the VerpackDG (registration), Section 9 (data reporting) or Section 10 (declaration of completeness).
This distinction is in line with the statutory requirements.
Irrespective of this, the overall legal responsibility for fulfilling the obligations under the Packaging Law remains with the producer or obligated company (in this case, the retailer). This applies in particular to the accuracy of quantities reported to the ZSVR (German Central Agency Packaging Register). Packaging quantities determined by suppliers and reported to the systems must therefore be incorporated by the obligated company into its own data report and documented in a traceable manner as part of the declaration of completeness.
However, practical implementation presents various challenges. It must be ensured that supplier data is complete, reliable and suitable for preparing any required declaration of completeness. The proposed process should also be coordinated early with the relevant system operators and international registration platform operators (e.g. take-e-way GmbH), as they must be organisationally and technically able to process suppliers’ quantity reports in compliance with legal requirements and within the prescribed deadlines.
Particular attention should be paid to the timing of volume declarations. According to the known agreements, suppliers must provide the relevant volumes by 15 March each year. At the same time, contracts with system operators often set 31 March as the deadline for submitting the previous year’s annual volumes. Missing these deadlines may result in additional costs or contractual penalties. Although the agreement may stipulate that the supplier is liable for such failures, this nevertheless creates considerable potential for conflict.
Another key aspect is the determination of packaging quantities. Supplier reports are generally based on goods movements when products leave the supplier’s warehouse. However, the quantities relevant under the Packaging Law are based on the actual quantities placed on the market by the obligated company, i.e. the quantities of goods leaving its warehouses or shops. This can lead to discrepancies between supplier reports and the quantities actually subject to reporting. Such differences may require time-consuming reconciliation and, where necessary, corrections with several system operators. For international goods flows, this may also affect deliveries to other countries.
Against this background, it is advisable to coordinate data collection requirements and documentation with the relevant expert, auditor or tax adviser at an early stage and to define the corresponding obligations contractually with suppliers. It should also be considered that actual annual volumes may not be available until mid-March, while the deadline for submitting the declaration of completeness is already 15 May. Queries, corrections or discrepancies can therefore make this timeframe tight and result in increased audit effort.
If this model is implemented, it would be sensible to additionally require interim volume reports from suppliers throughout the year. Regular reports, as well as independent audits or validations of the data, can help minimise subsequent corrections and improve data quality. This is particularly relevant for suppliers with highly fluctuating volumes or business relationships with an increased risk of reconciliation issues.
The financial implications should also be taken into account. If licence fees are already paid based on incoming goods volumes, while the corresponding sales revenue is only realised later, this may place a strain on the company’s liquidity. This aspect should also be considered when evaluating the model.
Overall, while the proposed agreement is in principle legally permissible, whether it delivers the desired organisational and economic benefits should be carefully assessed in each individual case. In particular, the risks relating to data quality, deadline management, reconciliation efforts and liquidity should be weighed comprehensively before implementing such an arrangement.
To support data validation and preparation of the declaration of completeness, additional services such as packaging weighings, re-weighings, material categorisation or the preparation of material flow statements may be useful. These services are offered, for example, by take-e-way GmbH. Without the necessary preparatory work, the first quarter of the following year can often be a very tight timeframe for robust data collection and verification.
take-e-way will be happy to assist you in assessing whether outsourcing the system participation obligation is advisable in your specific case and can provide suitable solutions if you decide to use a third-party licensing agreement.
