The clock is ticking to achieve a final agreement on the Packaging and Packaging Waste Regulation (PPWR). The European Commission, Parliament, and Council must agree on a final text before their last trialogue, scheduled for March 4. Once agreed upon, the text must be confirmed at the European Parliament’s last scheduled plenary session at the end of April. European elections are taking place in early June.
Lobbyists are therefore hard at work to exert their influence on the final text. Some members of the plastics industry have accused the draft PPWR of lacking ‘material neutrality’. Now, a legal assessment by Germany-based law firm Dentos, commissioned by European Plastics Converters, the German Industrial Association for Plastic Packaging (IK), and French trade association Elipso, has found that the draft text’s special rules for plastic and exemptions for other materials ‘are very likely not compatible with EU law’.
Special provisions for plastic include the ban of plastics packaging for fresh products or grouped packaging, like very light weight plastic carrier bags, shrink wraps, and collation films. Moreover, plastic packaging is uniquely excluded from certain exemptions, for example for flexible packaging for single-use applications for on-site consumption. Paper and cardboard, on the other hand, are uniquely granted some exemptions, for example from some re-use quotas. Special waste reduction targets have also only been applied to plastic packaging.
In its report, Dentos concludes that these ‘plastic-discriminatory provisions’ “most likely violate the EU principle of equal treatment because they discriminate against plastic packaging without any objective justification.”
“Studies indicate that discriminating against plastic packaging is neither suitable nor appropriate, as EU jurisprudence would require in order for it to be valid, and is instead counterproductive to the aims of the PPWR. Studies have shown that specific rules which only cover plastic packaging and exempt all other packaging materials will lead to an overall increase of the amount of packaging waste and greenhouse gas emissions, hinder the circular economy of plastics, and lead to a switch to other packaging materials with often less favourable characteristics, thereby create new environmental problems,” the report reads.
Groups in favour of the plastic-targeting provisions often argue that they are necessary because no other material is a source of as much waste and pollution as plastic, in part because previous packaging regulations have been favourable to plastic. On the other hand, these provisions are often criticised for encouraging a shift from one single-use material (plastic) to another (paper or carboard), which also has an immense environmental impact and often limited recyclability.
"The bans only on plastic packaging contradict the original objectives of the PPWR and the environmental principles of the EU,” Gaël Bouquet, director general of the French plastics packaging association Elipso said in a statement. “They would merely lead to a switch to single-use packaging made from other materials, e.g. paper and cardboard packaging, which is often less sustainable,” he argued.
Dentos also argued that if the ‘plastic-discriminatory’ provisions are adopted in the PPWR, the EU is opening itself to ‘numerous actions against them’.
“If any provisions that violate the substantive or procedural legal standards set out above are adopted in the PPWR, the companies affected by them can invoke this illegality before the EU courts…either directly by way of an action for annulment…or an action for compensation for damage suffered…, or indirectly by way of an action before a national court, which will in turn have to ask the European Court of Justice for a preliminary ruling,” the report says.