Packaging Ordinance Section 6 Obligation to Ensure the Collection of Sales Packaging Arising at the Private Consumer on a Full-Coverage Basis

Packaging Ordinance Section 6 Obligation to Ensure the Collection of Sales Packaging Arising at the Private Consumer on a Full-Coverage Basis

(1) Manufacturers and distributors who put sales packaging filled with product and typically arising at the private final consumer into circulation for the first time, shall take part in one or several compliance schemes pursuant to subsection (3) below to ensure the collection of such sales packaging on a full-coverage basis. Notwithstanding the first sentence above, distributors who put service packaging within the meaning of section 3 subsection (1) No. 2, second sentence, filled with product and typically arising at the private final consumer into circulation for the first time, shall be permitted to require that the manufacturers or distributors or upstream distributors of such service packaging take part in one or several compliance schemes pursuant to subsection (3) below with regard to the service packaging they provide. Sales packaging pursuant to the first sentence above may only be transferred to private final consumers if the manufacturers and distributors take part in a compliance scheme pursuant to subsection (3) below with regard to such packaging. For the purpose of ensuring equal terms of competition for all parties obligated under the first sentence above and of receiving reimbursement of their expenses, compliance schemes pursuant to subsection (3) below may also charge those manufacturers and distributors who do not take part in any compliance scheme for the cost of collecting, sorting, recovering or disposing of the packaging put into circulation by such persons and recovered by the compliance scheme. Where a distributor can prove that he has taken back, at the place of transfer, the sales packaging which he had put into circulation and transferred to private final consumers and that he has consigned it at his own cost to recovery in accordance with the requirements set out in No. 1 of Annex I, he can reclaim the fees paid for participation in a compliance scheme pursuant to subsection (3) below. The fifth sentence shall apply mutatis mutandis to sales packaging put into circulation by another distributor if this sales packaging is of such type, form and size and used for such products as the distributor supplies in his own product range. The proof pursuant to the fifth sentence above shall meet the requirements set out in No. 4, first to fourth and eighth sentences, of Annex I.

(2) The obligation pursuant to subsection (1) above shall not apply where manufacturers and distributors themselves accept returned packaging they put into circulation at places where packaging arises and which are considered as comparable to private households pursuant to section 3 subsection (11), second and third sentences, at those same places in accordance with section 8, first sentence, and consign it to recovery and where the manufacturer or distributor or a third party they have commissioned to do so produces a certificate of from an independent expert, verifying that they

1. have set up adequate sector-specific collection structures in the respective Länder ensuring regular free of charge collection of packaging in accordance with section 8, first sentence, at all places where packaging arises pursuant to section 3 subsection (11), second and third sentences, and which have been provided with packaging by the manufacturers and distributors, account being taken of existing sector-specific collection structures for sales packaging pursuant to section 7 subsection (1),

2. ensure recovery of the sales packaging in accordance with the requirements set out in Nos. 1 and 4 of Annex I without including in the mass flow verification sales packaging other than the packaging or transport and secondary packaging distributed in the sector in question by participating manufacturers and distributors.

The certificate by the independent expert shall be presented to the competent highest Land authority or the authority it designates at least one month before collection starts. The start of the collection shall be notified in writing. Notwithstanding the second and third sentences above, manufacturers, distributors or their agents who, on 1 January 2009, carry out their own recovery operations in conformity with the requirements set out in the first sentence above shall submit the certificate to the competent authority within 30 calendar days after 1 January 2009. Subsection (5), third sentence, and No. 1, No. 2 subsection (4) and No. 4 of Annex I shall apply mutatis mutandis.

(3) A compliance scheme shall ensure adequate regular free of charge collection of used and emptied sales packaging from or in the vicinity of the private final consumer throughout the catchment area of the obligated distributor on a full-coverage basis and shall comply with the requirements set out in Annex I. A compliance scheme (scheme operator, applicant) pursuant to the first sentence above shall consign the packaging entering such a collection system to recovery in accordance with the requirements set out in No. 1 of Annex I and shall meet the requirements set out in Nos. 2 and 3 of Annex I. Several compliance schemes can cooperate in the setting up and operation of their compliance schemes.

(4) A compliance scheme pursuant to subsection (3) above shall be coordinated with existing collection schemes run by the public bodies responsible for waste management in whose area it is set up. Such coordination shall be a prerequisite for the pronouncement pursuant to subsection (5), first sentence. It shall take place in writing. Special attention shall be paid to the interests of the public bodies responsible for waste management. The public bodies responsible for waste management may demand the takeover or joint use, for a suitable fee, of facilities required for collecting materials of the type referred to in Annex I to this Ordinance. Scheme operators may demand that the public bodies responsible for waste management allow them the joint use of these facilities for a suitable fee. In the coordination process, public bodies responsible for waste management may demand collection of non-packaging waste of the same material type for a suitable fee. Scheme operators shall be obligated to bear a share of the costs incurred by the public bodies responsible for waste management as a result of giving waste management advice for their respective compliance schemes and of setting up, allocating, maintaining and cleaning areas for the siting of large collection containers. The coordination shall not conflict with the awarding of contracts for waste management services on a competitive basis. The compliance scheme can accept the coordination agreement already in force in the area of a public body responsible for waste management without the latter having the right to demand new coordination. For each essential change in the framework conditions for the operation of the compliance scheme in the area of the public body responsible for waste management, the latter can demand an appropriate adjustment of the coordination agreement pursuant to the first sentence above.

(5) The highest Land authority responsible for waste management or the authority it designates shall, on application by the scheme operator, pronounce that a compliance scheme pursuant to subsection (3) above has been set up on a full-coverage basis. Such pronouncement pursuant to the first sentence above may subsequently be made the subject of collateral clauses that are necessary to ensure that the conditions applying at the time the pronouncement was made are maintained on a long-term basis during the operation of the compliance scheme. The highest Land authority responsible for waste management or the authority it designates may require at the time the pronouncement pursuant to the first sentence above is made or afterwards that the scheme operator provides appropriate insolvency-proof security in case he or his representatives cannot meet the obligations under this Ordinance, fully or in part, and the public bodies responsible for waste management or the competent authorities can claim reimbursement of costs for the performance of the necessary substitute measures. The pronouncement shall be made public and shall take effect upon its publication.

(6) The competent authority may revoke its pronouncement pursuant to subsection (5), first sentence, wholly or in part, if it ascertains that the requirements specified in subsection (3) above are not met. It shall make the revocation public. The revocation shall be limited to packaging made of certain materials if only this packaging does not meet the recovery quotas specified in Annex I. The competent authority may furthermore revoke its pronouncement pursuant to subsection (5), first sentence, if it ascertains that the operation of the compliance scheme has been discontinued.

(7) Compliance schemes shall take part in a joint body. This joint body shall have the following tasks in particular:

1. Assessment of the quantities of packaging of several compliance schemes in the area of a public body responsible for waste management to be assigned on a pro rata basis,

2. Allocation of the coordinated supplementary fees,

3. Coordination of tendering in a way that does not distort competition.
The pronouncement pursuant to subsection (5) above shall become ineffective if a compliance scheme does not take part in a joint body within three months after the pronouncement has been made. The joint body shall ensure that all compliance schemes have equal access to it and that provisions on the protection of personal data and of trade and business secrets are met. If decisions affect public bodies responsible for waste management the joint body shall hear the municipal umbrella organisations.

(8) If no compliance scheme pursuant to subsection (3) has been established, all final distributors shall be obligated to accept free of charge used and emptied sales packaging returned by the final consumer at or in the immediate vicinity of the place of actual transfer, to consign it to recovery in accordance with the requirements set out in No. 1 of Annex I and to meet the requirements of No. 4 of Annex I. The recovery requirements may also be met by reuse or transfer to upstream distributors or manufacturers. The final distributor must draw the attention of the final consumer, by means of clearly recognisable and legible notices, to the opportunity to return sales packaging as set out in the first sentence above. The obligation under the first sentence above shall be limited to packaging of such type, form and size and to packaging of such goods as the distributor supplies in his own product range. In the case of distributors with sales areas of less than 200 m2, the obligation to accept returned sales packaging shall be limited to the packaging of brands put into circulation by the distributor. In the case of the second sentence above, manufacturers and upstream distributors of packaging pursuant to subsection (1), first sentence, shall be obligated to accept free of charge returned packaging accepted pursuant to the first sentence above at the place of actual transfer, to consign it to recovery in accordance with the requirements set out in No. 1 of Annex I and to meet the requirements of No. 4 of Annex I. Different arrangements may be agreed regarding the place of return and the allocation of costs. The recovery requirements may also be met by means of reuse. The fourth and fifth sentences above shall apply mutatis mutandis.

(9) Subsections (1) to (8) shall not apply to sales packaging of pollutant-containing products within the meaning of section 8 nor to one-way drinks packaging subject to a compulsory deposit within the meaning of section 9. This shall be without prejudice to No. 3 subsection (1) of Annex I.

(10) This provision shall not apply to reusable packaging.